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2000 DIGILAW 597 (PNJ)

State of Punjab v. Amar Nath Aggarwal Const. (Pvt. ) Ltd.

2000-05-30

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - State of Punjab has filed the present revision and it has been directed against the judgment dated 31.3.1999 passed by District Judge, Chandigarh, who affirmed the order dated 13.10.1992 passed by Sub Judge 1st Class, Chandigarh, who allowed the application of respondent No. 1 M/s Amar Nath Aggarwal Construction (Pvt). Ltd. under Section 14 read with Section 17 of the Arbitration Act (hereinafter referred to as the Act) and made the award dated 10.4.1991 as rule of the Court. The trial court also allowed interest @ 6% per annum from the date of decree till payment. 2. Some facts of the case can be noticed in the following manner :- A dispute arose between M/s Amar Nath Aggarwal Construction (Pvt.) Ltd. and the State of Punjab with regard to the execution of the work and Superintending Engineer (Civil), Punjab State Electricity Board. Patiala by name was appointed as sole arbitrator. His name was Shri Lakvir Gupta. The also arbitrator gave the award dated 10.4.1991 in favour of the construction company and awarded a sum of Rs. 26,19,412.60. The State filed the objections under Sections 30/33 of the Act alleging that the arbitrator has misconducted himself. The main ground taken up by the State was that Shri Lakhvir Gupta was compulsorily retired w.e.f. 31-5-1990 and with his compulsory retirement he creased to officiate as Superintending Engineer and in these circumstances, he could not give the award. It was further maintained by the State that though the order dated 31.5.1990 was revoked by the State Government, yet vide order dated 22.6.1990 the authority of the arbitrator to act as an arbitrator was revoked and in these circumstances even with the revocation of the order dated 31.5.1990 Mr. Lakhvir Gupta, the nominated arbitrator, could not act as an arbitrator. It was also maintained by the State that the arbitrator has misconducted himself and the proceedings when he ha awarded the various amounts to the contractor under Clause 11 of the arbitration agreement. This aspect of the case was disputed by the contractor, who even maintained that vide letter dated 26.9.1990 the Chief Engineer (Construction) also himself gave the directions to the arbitrator to continue with the arbitration. This aspect of the case was disputed by the contractor, who even maintained that vide letter dated 26.9.1990 the Chief Engineer (Construction) also himself gave the directions to the arbitrator to continue with the arbitration. It was also the stand of the contractor that with the revocation of the order dated 31.5.1990, the status of the Superintending Engineer would be deemed to have been restored and in these circumstances the letter dated 22.6.1990 is meaningless. 3. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the award dated 10.4.1991 is liable to be set aside on the grounds mentioned in the objection petition ? OP Objector 2. Whether the objection petition is barred by limitation ? OPR 3. Whether the objection petition is not maintainable ? OPR 4. Whether the award dated 10.4.1991 is liable to be made the rule of the Court ? OPA 5. Relief. 4. The parties led oral and documentary evidence in support of their respective cases and vide order dated 13.10.1992 the award was made the rule of the Court by rejecting the objections of the State Government. 5. Aggrieved by the judgment and decree of the trial Court, the State filed the appeal before the learned District Judge, Chandigarh, who, for the following reasons as given in paras No. 8 to 16 of the impugned judgment, dismissed the appeal of the State :- "8. The main submission of the learned counsel for the appellants is that the Arbitrator under clause 63 of the agreement was required to give a reasoned award, but he has failed to give such a reasoned award and so he has misconducted and the award is liable to be set aside. I have perused the award with the able assistance of the learned counsel for the parties. It is a well reasoned award and is self-contained document consisting of 12 closely types sheets. Each claim has been taken up separately and it has been disposed of by giving cogent reasons. In these circumstances it would be naive to contend that the impugned award is not a reasoned award. In this context, it may be stated that it is not expected of the Arbitrator to give very detailed or cogent reasons in support of his award. All that is required is that he should give reasons, atleast some reasons, in support of his award. In this context, it may be stated that it is not expected of the Arbitrator to give very detailed or cogent reasons in support of his award. All that is required is that he should give reasons, atleast some reasons, in support of his award. A perusal of the Award clearly shows that the Arbitrator had given sufficient reasons in support of each item of the claim petition disposed of by him. Therefore, the contention of the learned counsel for the appellants is repelled. 9. It is then submitted by the learned counsel for the appellants that the Arbitrator and the Contractor had worked together at the Ropar and Bathinda thermal plants and so they were well known to each other and therefore the Arbitrator was biased in favour of the Contractor, respondent No. 1. However, except for the bare assertion of this fact, there is no reliable evidence on record in support of the alleged bias of the Arbitrator in favour of the respondent No. 1. So this contention is also repelled. 10. The next objection of the appellants requires to be rejected. It is submitted by him that the Chief Engineer (Construction) had revoked the order of appointment of the Arbitrator by his order dated 22.6.1990 and so the Arbitrator was functus officio. However, it is not deputed that the order dated 22.6.1990 was passed by the Chief Engineer (Construction), SYL because Sh. Lakhvir Gupta, Arbitrator had been compulsorily retired by the Government. But his order was set aside by the Honble High Court with the observations that he shall be treated to have been on duty as if he had never been compulsorily retired. If that be so, then with the passage of order by the Honble High Court, the appointment of Sh. Lakhvir Gupta as Arbitrator stood also revived. So, this contention of the learned counsel for the appellants does not avail him. 11. The parties have led their evidence in the shape of affidavit only. The appellant/objector has filed its affidavit in support of its objections while the Contractor, respondent No. 1, has filed his affidavit denying the allegations of the appellants. But these deponents who had sworn these affidavits have not been called for cross-examination by the opposite party nor cross-examined. Therefore, the affidavit of one party stands neutralised by the affidavit of the other, and vice-versa. But these deponents who had sworn these affidavits have not been called for cross-examination by the opposite party nor cross-examined. Therefore, the affidavit of one party stands neutralised by the affidavit of the other, and vice-versa. The net result is that no balance of evidence is left on the side of Objector/appellants and so the natural consequences would follow and the objection must be dismissed and appeal must fail. 12. However, it may be stated that the appellants have submitted that the Arbitrator has travelled beyond his jurisdiction and has not taken into consideration the evidence available on the record. However, no specific instance has been brought to the notice of this court whether the Arbitrator has travelled beyond his jurisdiction. As noted above, the affidavit of one party had neutralised the other and there was nothing much to be looked into by the trial court except the affidavits of the two parties, the award of the Arbitrator and the annexures thereto. On perusal of the impugned award, one finds that he has referred to all this material. So, no fault can be found with his award. 13. In passing, it may be noted that the learned Government Pleader for the appellants has submitted that there was a provision of 297.50 metres lead, because sufficient land was not available. However, the respondent No. 1 had claimed for disposal of 924 cubic metres of earth work at the distance of 2.5 Kms. from the site and that he did not use the land available with the appellants which had been acquired during the period from 22.5.1995 to 4.10.1995. It is submitted that in the extra item Rs. 16.75 per square metre was allotted whereas only Rs. 1.75 could be paid and that there was no basis for allowing Rs. 14/- per cubic metre for disposal of the earth work. In the same context, it is submitted that the Arbitrator had allowed Rs. 4.65 per cubic metre for rehandling of slush etc. against the rate of 1.65 per cubic metre. 14. The next objection of the appellants is that increase in the rate of aggregate was allowed without any basis and the committee appointed by the Chief Secretary Punjab had not given any findings, even then the increase in rate of aggregate was allowed by the Arbitrator. against the rate of 1.65 per cubic metre. 14. The next objection of the appellants is that increase in the rate of aggregate was allowed without any basis and the committee appointed by the Chief Secretary Punjab had not given any findings, even then the increase in rate of aggregate was allowed by the Arbitrator. However, the objection of the appellant is that interest could not be awarded by the Arbitrator. However, a perusal of award of the Arbitrator shows that all these objections had been taken before him and that he had dealt with and disposed of all these objections by giving detailed reasons. It is significant to note that the Arbitrator had awarded the amount as per rates sanctioned by the competent authority. Besides this, there is no reliable evidence on record that the possession of the acquired land had been taken on 5.3.1985. On the contrary, the record shows that the possession of the land had been taken on 4.10.1985. So, this land was not available to the respondent No. 1 in March, 1985. 15. It is submitted by the learned counsel for the respondent No. 1 that as ruled in 1991(2) PLR 183, Housing Board Haryana, Chandigarh v. M/s National Construction Company, the Arbitrator is competent to award interest. No authority taking a contrary view has been cited by the appellants, So, this objection of the appellants is repelled. 16. One must be conscious of the fact that the jurisdiction of the Civil Court is limited. It cannot sit in appeal over the award of the Arbitrator. This principle has been enunciated in a large number of authorities and so the judgment need not be burdened by citing case law. Suffice does it to say that his principle of law was stated in 1987(2) PLR 311, M/s Vilkhu & Sons Engineers & Govt. Contractors & others and AIR 1985 P&H 179, Sarvjit Singh v. State of Punjab; AIR 1988 Supreme Court 1340, Indian Oil Corporation Ltd. v. Indian Carbon Limited. In AIR 1987 Supreme Court 81, M/s Hindustan Tea Company v. K. Shashi Kant & Co. it was inter-alia ruled that the award cannot be set aside on the ground that the Arbitrator had reached wrong conclusions or had failed to appreciate the facts correctly. It may be stated, even at the cost of repetition, that the award of the Arbitrator is reasoned one. it was inter-alia ruled that the award cannot be set aside on the ground that the Arbitrator had reached wrong conclusions or had failed to appreciate the facts correctly. It may be stated, even at the cost of repetition, that the award of the Arbitrator is reasoned one. It is based on relevant material and evidence and reasons are given. This court is not sitting as a court of appeal against the award of the Arbitrator. This award cannot be set aside even if the Arbitrator had reached wrong conclusions or had failed to appreciate the facts correctly. No misconduct of the Arbitrator or misconduct on proceedings has been proved by the appellant. No other valid ground under Section 30 or 33 of the 1948 Act for setting aside the award of the Arbitrator has been proved by leading cogent and reliable evidence. Therefore, no fault can be found with the findings of the learned trial court on issues No. 1 & 4 and so the same are affirmed." 6. In this manner the present revision by the State of Haryana. 7. I have heard Mrs. S.K. Bhatia, Deputy Advocate General, Punjab, on behalf of the petitioners, Mr. Ajay Tiwari, Advocate, on behalf of the respondent No. 1 and with their assistance have gone through the record of this case. 8. The learned counsel appearing on behalf of the petitioners submitted at the first instance that the authority of the arbitrator was revoked vide letter dated 22.6.1990 and in these circumstances the arbitrator could not continue with the reference and any decision given by him after 22.6.1990 would be violative and it will tantamount to misconduct on the part of the arbitrator. 9. The submission of the learned counsel for the petitioners is not acceptable to this Court. The State Government had revoked the order dated 31.5.1990 and for all intents and purposes Shri Lakhvir Gupta will be deemed to officiate as Superintending Engineer (Electrical), who was nominated arbitrator. In this case the arbitrator was appointed as per office and not by name. Moment the retirement of Mr. Gupta was revoked for all intents and purposes, he will be deemed to officiate as Superintending Engineer and all the functions which he was discharging shall stand revived. In these circumstances, if any award has been made by the nominated arbitrator, it will not invalidate the proceedings. 10. Moment the retirement of Mr. Gupta was revoked for all intents and purposes, he will be deemed to officiate as Superintending Engineer and all the functions which he was discharging shall stand revived. In these circumstances, if any award has been made by the nominated arbitrator, it will not invalidate the proceedings. 10. It was then submitted by the learned counsel for the petitioners that the arbitrator has exceeded his jurisdiction when he has allowed the claim to the contractor under various items such as clause 11. Mrs. Bhatia further submitted that the arbitrator has awarded damages to the contractor on small items which shall be considered as part of the main items and the arbitrator was not competent to award the amounts. 11. This argument of the learned counsel for the petitioners is also not acceptable. The arbitrator has acted within his jurisdiction. The dispute was referred to him for adjudication. The award could only be set aside if there is a patent illegality or if the arbitrator had exceeded his jurisdiction and has misconducted himself or the proceedings. We all know that arbitrator is a master of facts. Even this Court may differ on reappraisal of evidence with the view of the arbitrator, still the award cannot be set aside. Resultantly, I do not find any merit in this revision. The same is hereby dismissed with no order as to costs. Revision dismissed.