State of Orissa, through Executive Engineer, Charbatia R. & B. Division v. Bansidhar Behera
2007-01-04
A.S.NAIDU
body2007
DigiLaw.ai
JUDGMENT A. S. NAIDU, J. — This Miscellaneous Appeal has been filed under Section 39-VI of the Arbitration Act, 1948 by the State of Orissa being aggrieved by the judgment dated 18.3.1993 passed by the then Subordinate Judge, Bhubaneswar dismissing Misc. Case No.261 of 1991 filed by the State and making an Award passed by the Arbitration Tribunal a Rule of the Court. 2. The respondent, a contractor, had entered into an agreement with the appellant-State for construction of a Dispen¬sary building for the ESI together with staff quarters at Choud¬war under an agreement bearing No.26/F-2 of 1977-78. It was agreed upon among the parties that the said construction work would be completed within twelve months. During continuance of the construction work certain disputes with regard to payments having arisen, in consonance with the terms of the agreement, the said disputes were referred to the Arbitration Tribunal under Section 41A of the Act (Orissa Amendment) for adjudication. The Arbitration Tribunal entered into the reference and after issuing notice to the parties calling upon them to file their respective statements of claim, adjudicated the disputes and passed an Award on 30.5.1991 for Rs.69,542.56. The said Award was filed before the Court below on 2.7.1991 and O.S. No.146 of 1991 was regis¬tered. Notices were issued by the Court below to the parties. The respondent-contractor did not file any objection to the Award and prayed that the same might be made a Rule of the Court. The appellant-State, however, filed a petition under Sections 30 and 33 of the Arbitration Act which was registered as Misc. Case No.261 of 1991 challenging the Award of the Arbitration Tribunal inter alia on the grounds that the Award was arbitrary, illegal and without any basis. Further, the Tribunal had not properly decided the claim items and had awarded exorbitant amounts and that he had no jurisdiction to award interest which was beyond the scope of the agreement. 3. The learned Court below after elaborately discussing the materials on record came to the conclusion that the State had failed to show from the Award that the Tribunal had committed any illegality in adjudicating the disputes.
3. The learned Court below after elaborately discussing the materials on record came to the conclusion that the State had failed to show from the Award that the Tribunal had committed any illegality in adjudicating the disputes. On the basis of such finding, the Court below arrived at the conclusion that the Tribunal had dealt with each item of claims and had given good reasons while making the Award and no materials were produced before the Court indicating that the Tribunal had committed any illegality. Accordingly, the Court below refused to interfere with the Award as the same did not suffer from any illegality or infirmity. With regard to objection of the State as to award of interest by the Tribunal, the Court below after examining the materials on record came to the conclusion that the Tribunal had awarded interest up to 28.6.1989 and had not awarded pendente lite interest. On the basis of such conclusions, the Court below dismissed the objection of the State and made the Award a Rule of the Court. 5. Though several submissions were raised before this Court, learned Addl.Govt. Advocate only stressed upon the submis¬sion that the reference made to the Tribunal itself was unjust, illegal and not maintainable as the claimant had accepted payment in question as per the final bill without any objection. Several other grounds have been taken in the Memo. of Appeal challenging the Award and also the judgment of the Court below. 6. The submissions of the learned Addl.Govt. Advocate are repudiated by Mr. R. K. Rath, the learned counsel for the respon¬dent-contractor. According to the Mr. Rath, the reference having been made to the Arbitration Tribunal at the instance of the appellant-State, it (State) is estopped from making any contrary statement. Further, the State having filed its counter-claim before the Arbitration Tribunal, that would indicate that it had accepted maintainability of the reference to the said authority. 7. In course of hearing, Mr.
Rath, the reference having been made to the Arbitration Tribunal at the instance of the appellant-State, it (State) is estopped from making any contrary statement. Further, the State having filed its counter-claim before the Arbitration Tribunal, that would indicate that it had accepted maintainability of the reference to the said authority. 7. In course of hearing, Mr. Rath strenuously took this Court through the petition filed by the State under Sections 30 and 33 of the Arbitration Act before the learned Court below and contended that the said petition did not indicate that the stand that the reference was not tenable before the Arbitration Tribun¬al on the ground that the respondent-contractor had received the payment in question without any protest had never been taken by the State at any stage before the Arbitration Tribunal, and therefore such a contention before this Court cannot be enter¬tained. He further submitted that the payments were never re¬ceived by the respondent-contractor without protest and the submission to the contrary is apparently wrong. 8. Be that as it may, while dealing with an appeal against an order of Court below making the Award of the Arbitration Tribunal a Rule of the Court, this Court does not sit in appeal over the Award or to review the reasonings advanced in the Award. This Court can interfere with the Award only if it would be apparent from the Award that there was no evidence to support the same or that the same was passed on any legal proposition which was erroneous. It is well settled that while considering the question whether an Award is to be set aside or not, this Court does not examine the said question as an appellate Court. It is well settled that the conclusion arrived at by an Arbitrator is not open to challenge on the ground that an alternative view on law is possible. (See AIR 1997 SC 1324 - V.B. Radhakrishna v. Sponge Iron India Ltd.) 9. It is also well-settled that this Court is precluded from re-appraising the evidence.
It is well settled that the conclusion arrived at by an Arbitrator is not open to challenge on the ground that an alternative view on law is possible. (See AIR 1997 SC 1324 - V.B. Radhakrishna v. Sponge Iron India Ltd.) 9. It is also well-settled that this Court is precluded from re-appraising the evidence. Even in a case where an Award contains no reasons, the scope of interference with it will still not be available within the jurisdiction of this Court unless of course the conclusions are totally perverse, or the Award is based on wrong proposition of law apparent on the face of the Award calling for closer scrutiny of the materials on record on the basis of which the Award was passed. (See AIR 2004 SC 586 - State of U.P. v. Allied Constructions). 10. Learned Addl.Govt. Advocate in support of his submis¬sion that when the final bill had been accepted by a contractor without protest, the matter could not be referred to arbitration, relied upon the decision in the case of Union of India v. M/s. Popular Builders, Calcutta - AIR 2000 SC 3185 . But then the facts of the said case were quite different from that of the case at hand. In the said case the question with regard to maintainabili¬ty of the reference was raised before the Arbitrator which was not done in the instant case. Even in this case such a plea was not even taken before the Court below. At the other hand, the State filed its counter claim before the Arbitration Tribunal, thereby not disputing the maintainability of the reference. Thus such a ground raised for the first time before this Court cannot be entertained. 11. That apart, an Award can be interfered with by this Court only in consonance with the provisions of Section 30 of the Arbitration Act, that too only on the following grounds : (a) An Arbitrator or Umpire has mis-conducted himself, or the proceeding; (b) An Award has been made after issue of an order by Court superseding the arbitration or after the arbitration proceeding became invalid under Section 35; and (c) An Award has been pronounced or is otherwise invalid. None of the said grounds are satisfied in the present case. 12. After hearing the learned Addl.Govt.
None of the said grounds are satisfied in the present case. 12. After hearing the learned Addl.Govt. Advocate and the learned counsel for the respondent-contractor, and going through the Award of the Arbitration Tribunal and the impugned order passed by the Court below, this Court finds that the conclusions arrived at by the said Tribunal did not suffer from any infirmity or illegality nor are perverse or contrary to materials available on record, calling for interference with the same by the Court below. Learned Addl. Govt. Advocate failed to point out any error apparent on the face of the Award. This Court also finds that the learned Court below took note of all the facts and circumstances of the case and rightly rejected the petition filed under Sec¬tions 30 and 33 of the Arbitration Act, and made the Award a Rule of the Court and the said order is just; proper and in accordance with law. Accordingly, this Court dismisses the Miscellaneous Appeal. Misc. Appeal dismissed.