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2001 DIGILAW 571 (JHR)

SAMAR NAYAK, SARNARJIT NAYAK v. S. K. SADHU

2001-08-14

GURUSHARAN SHARMA

body2001
Judgment : GURUSHARAN SHARMA, J. ( 1 ) AS common questions are involved, M. A. Nos. 234 and 267 of 1994 (R) have been heard together and are disposed of by a common judgment. ( 2 ) TWO contracts were entered into between m/s. Hindustan Copper Limited, Ghatsila (hereinafter referred to as the Company)and Samar Nayak (hereinafter referred to as the Contractor) on 30-8-1984 and 16-5-1985 in relation to external works for 204 units a type quarters and for construction of 45 units Upper Floor b type quarters at Musabani. The works assigned under the aforesaid contracts were not executed in time and as such both contract were cancelled by the Company. ( 3 ) THIS led to difference and dispute between the parties and consequently the Contractor requested the Chairman, HCL as per arbitration clause of the agreements to refer the disputes for adjudication by arbitrator. ( 4 ) THE Contractors case was that for a type quarters, the Company failed to supply equipments and materials like fload Rotter, Bitumin, Cement, Water point etc. in time. Further, monthly payment of 90% of running account bills were also not made. For b type quarter work also materials like cement was not supplied in time. As such execution of works got delayed. For b type quarters the Company had also issued direction for stopage of work for some period on account of financial stringency. ( 5 ) IT was further claimed that the Company did not pay even the secured advance as per the contract and performance of contract dated 30-8-1984 relating to a type quarters became impossible for non-payment of running account bills end also for not supply with price escalation clause of the contract. The said contract was wrongly terminated. ( 6 ) DISPUTES relating to both the contracts were referred to Sri S. K. Sadhu, Senior Manager (Electrical), M/s. Hindustan Copper Limited as the sole arbitrator. ( 7 ) THE contractor submitted his claims with respect to both the contracts, i. e. Rs. 5,47,712. 75 paise in relation to a type quarters and Rs. 4,49,837. 42 paise in respect b type quarters. On the other hand, the Company also raised counter claim for a sum of Rs. 1,54,576. 50 paise regarding a type quarters and Rs. 5,19,210/- for b type quarters. ( 8 ) THE sole arbitrator entered into reference on 22-8-1986. 5,47,712. 75 paise in relation to a type quarters and Rs. 4,49,837. 42 paise in respect b type quarters. On the other hand, the Company also raised counter claim for a sum of Rs. 1,54,576. 50 paise regarding a type quarters and Rs. 5,19,210/- for b type quarters. ( 8 ) THE sole arbitrator entered into reference on 22-8-1986. Parties thereafter filed their claim and counter claim in respect to the disputes in question. Between 12-11-1986 and 9-1-1989 there were thirteen sittings. The arbitrator by letter dated 24-12-1988 informed date of next sitting on 9-1-1989, which was duly received by both parties on 30-12-1988. The contractor failed to appear on 9-1-1989 and had also not participated in reconciliation of measurement after 28-9-1988. The arbitration proceedings was concluded on 9-1-1989. ( 9 ) THE arbitraton proceeding continued for three years and it is apparent from the order-sheet that several opportunities were provided to the Contractor, but he failed to co-operate sincerely and, unltimaterly, the proceedings was concluded on 9-1-1989. ( 10 ) NO doubt, the Contractor participated in joint measurement of the site in the beginning, but stopped attending re-conciliation of the measurement and as such the measurement done by the company was accepted. It, therefore, cannot be said that the Company had done ex-parte measurement according to its choice. The Company got the construction work completed by another agency. ( 11 ) THE sole arbitrator gave Award dated 19-1-1989, holding that the Contractor was entitled to get Rs. 91,866. 66 paise in respect of external works of 204 a1 type quarters. Counter claim of the Company was also allowed to the extent of Rs. 44,851. 50 paise. Hence the Company was directed to pay Rs. 47,015. 16 paise to the Contractor. ( 12 ) SO far as the dispute relating to 44 units U/f b type quarters was concerned, the Contractor was allowed to receive Rs. 57,017. 44 paise and counter claim of the Company was also allowed for Rs. 1,94,871. 85 paise. Hence, the Contractor was directed to pay Rs. 1,37,671. 41 paise to the Company. ( 13 ) THE Contractor filed an application under Section 14 (2) of the Arbitration Act, 1940, before the 1st Subordinate Judge, Ghatshila, which was registered as Title Suit No. 25 of 1989. 1,94,871. 85 paise. Hence, the Contractor was directed to pay Rs. 1,37,671. 41 paise to the Company. ( 13 ) THE Contractor filed an application under Section 14 (2) of the Arbitration Act, 1940, before the 1st Subordinate Judge, Ghatshila, which was registered as Title Suit No. 25 of 1989. a prayer was made therein to direct the Arbitrator to file award dated 19-1-1989 in Court so that necessary objection thereto may be filed by him. Thereafter the Arbitrator filed the said award in Court with an application to make the said award Rule of Court under Sections 14 (2) and 17 of the Act, which was registered as Title Suit No. 51 of 1989. By order dated 2-7-1990 both the suits were amalgamated for the purpose of hearing. ( 14 ) BY impugned judgment and decree dated 3-9-1994 learned subordiante Judge held that there was no error on the face of the award to set it aside either on the ground of misconduct of the Arbitrator or misconduct of the proceeding by the Arbitrator or for any other reason. There is no merit in the objection put forward by the Contractor. Award dated 19-1-1989 filed before the Court undersection 14 (2) of the Act was made Rule of Court, ( 15 ) MR. Tiwari, counsel for the appellant submitted that the Arbitrator entertained the revised additional claim of the Company on the last, date of the arbitration proceeding without even intimating the contractor of such claim, which was not even supported by any evidence. ( 16 ) IT appears that no doubt on 9-1-1989 the Company revised its claim in respect item Nos. (a), (e) and (f) in respect of contract dated 30-8-1984 and item Nos. (a) and (d) (ii) of contract dated 16-5-1985, whereby amount of most of the claims were reduced, which were either accepted or were further reduced and the increase of the amount in some of the items were not acepted. So the Contractor was not prejudiced in any manner suffered loss on entertainment thereof by the Arbitrator. I, therefore, find no substance in the submission of Mr. Tiwari in this regard. ( 17 ) I find no reason to interfere with the impugned judgment and award, whereby the award dated 19-1-1989 was made Rule of Court. ( 18 ) IN the result, these two appeals are dismissed, but without costs. Appeal dismissed. I, therefore, find no substance in the submission of Mr. Tiwari in this regard. ( 17 ) I find no reason to interfere with the impugned judgment and award, whereby the award dated 19-1-1989 was made Rule of Court. ( 18 ) IN the result, these two appeals are dismissed, but without costs. Appeal dismissed. --- *** --- .