JUDGMENT 1. - These appeals have been filed by the State and the Contractor M/s. Chandi and Company against the common order of the learned Additional Dist. Judge, Banswara dated 22.1.2009 deciding the application filed by the State under Section 30 and 35 of the Arbitration Act, 1940 by which the Arbitration Award dated 12.3.1997 made by the sole Arbitrator Mr. K.C. Jain was made rule of the Court. The said award dated 12.3.1997 was passed by the learned Arbitrator in respect of agreements No. 43/88-89 and 45/88-89 executed between the State and the Contractor for Annas Syphon for Anandpuri Canal whereunder the contractor was given the work of excavation of Anandpur Canal from RD 790M to RD 3390M. 2. That the State of Rajasthan had earlier also approached this Court by way of SBCMA No. 1124 of 2005, State of Rajasthan v. M/s. Chandi and Company and SBCMA No. 1187/2005 which came to be decided by this Court on 25.10.2005 and it was held that the present arbitration dispute would be covered by the provisions of old Arbitration Act, 1940 instead of new enactment of 1996 and the earlier order passed by the learned Dist. Judge dated 23.2.2005 was set aside and the matter was remanded back to the learned trial Court for deciding the objections of the appellant State on merits. After the said appeals were decided by this Court on 25.10.2005, the learned Arbitrator has decided the said objections of the State by the impugned order dated 22.1.2009 against which both the parties have filed the present appeals. 3. The present appeals filed by the State are mainly on the ground that the learned Additional Dist. Judge has erred in rejecting the objections of the State under Section 30 and 33 of the Act of 1940, whereas the appeals filed by the Contractor M/s. Chandi and Company are limited to the question as to whether the learned Additional Dist. Judge while making the Arbitration Award a rule of the Court could reduce the rate of interest awarded by the learned Arbitrator from 17.5% to 9%. 4. Mr. G.R. Punia, learned Additional Advocate General appearing for the State made the following submissions : (i) The learned Arbitrator has awarded the claim in favour of the contractor beyond the terms of the contract itself and therefore, the Award deserves to be set aside.
4. Mr. G.R. Punia, learned Additional Advocate General appearing for the State made the following submissions : (i) The learned Arbitrator has awarded the claim in favour of the contractor beyond the terms of the contract itself and therefore, the Award deserves to be set aside. (ii) The additional claims filed by the Contractor before the Arbitrator were barred by the provisions of Order 2 Rule 2 C.P.C. and therefore such additional claims could not be entertained by the learned Arbitrator. (iii) The learned Arbitrator has awarded the rate of certain items of construction beyond the rates prescribed in G-Schedule and therefore, such an award cannot be sustained. 5. The learned counsel for the appellant relied upon the following decisions of the Hon'ble Supreme Court in the case of Steel Authority of India Limited v. Gupta Brother Steel Tubes Limited, reported in (2009) 10 SCC 63 , Ch. Ramalinga Reddy v. Superintending Engineer, reported in 1995 DNJ (SC) 134 and also the decision of Supreme Court in the case of RSRTC v. Indag Rubber Limited, reported in 2006(2) WLC (SC) Civil 696 : 2006 DNJ (SC) 857 on the issue of interest rate awarded by the learned Arbitrator at the rate of 12% being reduced by the Hon'ble Supreme Court to 6%. Mr. G.R. Punia, AAG, therefore prays for these appeals to be allowed and the order of the learned Additional Dist. Judge as well as Arbitration Award to be set aside by this Court. 6. On the side opposite, Mr. L.R. Mehta assisted by Mr. Ramit Mehta and Mr. M.K. Trivedi urged that grounds for setting aside the Arbitration Award under the provisions of Section 30 of the Act of 1940 are very limited and narrow and unless the Arbitrator has misconducted himself or unless the Award has been improperly procured or is otherwise invalid, the same cannot be set aside. Mr. I.R. Mehta also vehemently submitted that the learned Arbitrator has passed the detailed Award on each claim and as many as 45 claims have been decided by the learned Arbitrator and under each claim head, he has given reasons for awarding the particular amount and dealing with the objections raised by the State. He, therefore, submitted that the Award is faultless and there are no allegation of bias or misconduct as such against the learned Arbitrator who happened to be a departmental officer only. Mr.
He, therefore, submitted that the Award is faultless and there are no allegation of bias or misconduct as such against the learned Arbitrator who happened to be a departmental officer only. Mr. Mehta also urged that the provisions of Order 2 Rule 2 C.P.C. could not be applied in the facts and circumstances of the present case because the learned Arbitrator has not only rejected some of such additional claims raised by the contractor, but in some cases has also granted reduced rate in comparison to the claim amount under the Award and while allowing the certain additional claims has given detailed reasons for the same and therefore, the contention of the learned AAG for the State that no such additional claims could be entertained by the learned Arbitrator is misplaced and deserves to be rejected. 7. Mr. I.R. Mehta relied upon the decision of the Hon'ble Supreme Court in the case of K. Chellappan v. Secretary, Kerala State Electricity Board and anr., reported in 1975(1) SCC 289 and the decision of the Supreme Court in the case of K.V. George v. The Secretary to Govt., Water and Power Department, Trivandrum and anr., reported in AIR 1990 SC 53 and also the recent decision of the Hon'ble Supreme Court in the case of Steel Authority of India Limited v. Gupta Brothers Steel Tubes Limited reported in 2009(10) SCC 63 wherein the Hon'ble Supreme Court has again reiterated that legal position is no more res integra that the Arbitrator having been made final arbiter of resolution of disputes between the parties, the award is not open to challenge on the ground that arbitrator has reached at a wrong conclusion. The Courts do not interfere with the conclusion of the arbitrator even with regard to construction of a contract, if it is a possible view of the matter. The words not award shall be set aside" in Section 30 mandate the courts not to set aside the award on grounds other than those specified in Section 30. Mr. Mehta also urged that there is no mistake of law apparent on the face of the Award which can render it to be "otherwise invalid in law" as required by Section 30 of the Act. As far as reduction of interest from 17.5% to 9% by the learned Additional Dist. Judge is concerned, the learned counsel for the Contractor, Mr.
Mehta also urged that there is no mistake of law apparent on the face of the Award which can render it to be "otherwise invalid in law" as required by Section 30 of the Act. As far as reduction of interest from 17.5% to 9% by the learned Additional Dist. Judge is concerned, the learned counsel for the Contractor, Mr. Mehta also submitted that there is no justification in such reduction of interest as bank interest rates may now be low but when the learned Arbitrator awarded the same way back in the year 1997, the bank interest rates were as high as 18% and therefore, the interest rate of 17.5% awarded by the learned Arbitrator was justified. He, therefore, prayed for allowing the appeals filed by the contractor and for again increasing the rate of interest as reduced by the learned ADJ to 17.5% p.a. 8. I have heard the learned counsel at length and given my thoughtful consideration to the rival submissions and record of the case and the judgments cited at the Bar. 9. In the opinion of this Court, all the four appeals filed by the State as well as the Contractor deserve to be dismissed. The reasons are as follows : 10. It hardly requires emphasis to now reiterate that parameters and grounds on which the Arbitration Award can be assailed under Section 30 of the Act of 1940 are limited and narrow in compass and unless the said parameters are strictly satisfied, the Arbitration Award cannot be tinkered with or set aside by the learned Dist. Judge as well as this Court in appellate jurisdiction. The very intention of the Arbitration Act and arbitration proceedings is to allow the disputes to be decided by technical experts who become the judge by choice of the parties and it provides effective alternative dispute redressal forum for such parties and arbitration forum in such contractual matters between the State and the Contractor is well known ad well established alternative forum. In order to give finality to Arbitration Awards, the grounds for assailing the same have been limited and the close scrutiny of Section 30 of the Arbitration Act, 1940 in light of the judgments cited above would clearly reveal that such Arbitration Awards cannot be lightly set aside. 11. In the present case, the learned AAG, Mr.
In order to give finality to Arbitration Awards, the grounds for assailing the same have been limited and the close scrutiny of Section 30 of the Arbitration Act, 1940 in light of the judgments cited above would clearly reveal that such Arbitration Awards cannot be lightly set aside. 11. In the present case, the learned AAG, Mr. G.R. Punia was at pains to explain and failed to establish how the learned Arbitrator has awarded the claim of contract beyond the terms of contract. Illustratively, in claim No.1 he submitted that the Award of the rate of Rs. 166.45 per square meter for item No. 106 of G-Schedule for shuttering has been awarded by the Arbitrator against the rate of Rs. 76.30 per sq. meter. The learned AAG wrongly submitted that such rates were awarded for the work of cantering also under clause (a) (internal page 10 of the Award), but even for side shuttering, the learned Arbitrator has given cogent reasons for the same in para 3 (internal page 11 of the Award) in following terms: "In this connection it is stated that rates of Form Work for all types of RCC works existed in Schedule-G and the claimant expected payment for proper rates as per type of Form Work (Shuttering) provided by him during execution of work. Secondly shuttering for inner side of Box and outer side of Box are integral part of each other. One cannot stand without the support of the other. Shuttering for both sides has to be joined with Bolts of suitable length according to the thickness of side wall of the Box and then alone concrete pouring work can be undertaken. Payment of separate rates for inside and outside shuttering is, therefore, unjustified. Thirdly in other similar works on Mahi Pariyojana, payment at rates provided in item No. 10B of G-Schedule for outer side Box shuttering was not denied by the respondents. Different rates for same work cannot be paid for this work in the same Project. Besides the inner side shuttering plates are interchangeable with outerside shuttering plates and expenditure in providing them is same in both cases. By no stretch of imagination, payment of separate rate for inside and outside shuttering can be conceived. I, therefore, uphold the claim of claimants for payment at rates provided in item No. 110B of G-Schedule for outside Box shuttering including tender premium of 70.89%.
By no stretch of imagination, payment of separate rate for inside and outside shuttering can be conceived. I, therefore, uphold the claim of claimants for payment at rates provided in item No. 110B of G-Schedule for outside Box shuttering including tender premium of 70.89%. Total quantity of outside shuttering executed by the claimants as per item No. 10(b) of 19th Running bill is 2576.94 sqm. and has been paid at Rs. 76.30/Sqm against payable rate as per item no. 10B of G-Schedule at Rs. 166.45 Sqm. The amount now payable at ( Rs. 166.45- Rs. 76.30) i.e. Rs. 90.15/Sqm. for 2576.94 Sqm. works out Rs. 2,32,311.00. Adding tender premium of 70.89% i.e. 1,61,680.00 total amount payable works out Rs. 3,96,996.00." 12. Similarly for claim No.2, the learned Arbitrator dealt with objections of the State in the following terms at internal page 22 as under: "Respondents denied the claim on the ground that total quantity of all the 6 sub-items executed has not exceeded 150% of total quantity of all these sub-items under item No. 1 of Schedule-G and as such claim of extra rate for excess in individual sub-items b, c and e is not tenable as per clause 12A of the agreement. Claim was, therefore, rejected by the Executive Engineer and Superintending Engineer (refer Ex.C-66 and Ex.C-68). It was further stated that since the claimant has demanded same rate of Rs. 170/Cum for all sub-items including tender premium, it is presumed by the respondents that he considers all sub-items as one item and not separate items. I do not agree with the respondents at all. The 6 sub-items of item No. 1 of Schedule-G are separate items of excavation with separate rate for the same and cannot be grouped together as far as applicability of clause 12A of agreement is concerned and claimant could not be compelled to execute in excess 150% of quantity mentioned in Schedule-G for anyone of the sub-items at tendered rates. This view has been corroborated by the Additional Chief Engineer, Irrigation Zone, Kota (Ex.C-61-A) vide his letter No. P-325/ACE/I/Ac-1 / 11551 dated 21.11.90, wherein he has sanctioned negotiated rate for sub-item, in which quantity in excess 150% of that mentioned in Schedule-G was got executed by the contractor, for such excess quantity of sub-item as per clause 12 and 12A of agreement.
If the respondents did not agree to the rate demanded by claimant for excess quantity, they could withdraw the excess work from claimant and carry out the same departmentally or through any other agency as per clause 12 of agreement. Some soft stratified rocks and phyllites at deeper levels are very hard to excavate and sometimes excavation of these rocks requires blasting also. This could be main reason for demand of same rate for excess quantity of all sub-items by the claimant. After careful examination of documentary evidence and hearing arguments of both parties, I accept the same put forth by the claimant for Rs. 7,94,240/- only for excess quantity of 4672 Cum of sub-items b, c and e of item No.1 of Schedule-G at Rs. 170/Cum as per provisions of clause 12A and clause 12 of agreement. As already adjudicated in claim No. 1 average escalation at Rs. 8.12% shall also be payable on the amount of this claim against 9.38% demanded by the claimants. This amount works out Rs. 64,492/-. Total amount including escalation is Rs. 8,58,732/-. Interest at 17.5% is allowed to the claimant for the period from 1.5.91 to 11.11.92 (period prior to reference) plus pendente lite interest on the basis of equity at 17.5% from the date of award to the date of satisfaction of Decree shall also be payable on the total amount of claim." 13. This Court likewise went through the Award and it is found that the learned Arbitrator has discussed in detail all the reasons given for the claim awarded by him. Some of the additional claims raised by the contractor have also been rejected and it is not that the learned Arbitrator blindly awarded the claims of the contractor. Such a cogent, detailed and well reasoned Award running into as many as 90 pages came to be made rule of Court by the learned Additional Dist. Judge by equally well reasoned order running into 15 pages again discussing the reasons given by the learned Arbitrator each claim-wise and the learned Additional Dist. Judge has also overruled the objections of the State. 14.
Judge by equally well reasoned order running into 15 pages again discussing the reasons given by the learned Arbitrator each claim-wise and the learned Additional Dist. Judge has also overruled the objections of the State. 14. Since this Court finds that the objections of the State have been raised me ' because the State is required to pay additional amount under the Arbitration Award, that would be negating the very spirit of the Arbitration Award between the parties which has been made rule of the Court. It is not the Award which shocks the conscience of the Court or that false and frivolous claims have been entertained and awarded by the learned Arbitrator and since as already stated that grounds of interference by the Court in arbitral award as prescribed under Section 30 of the Act of 1940 are very limited and narrow, this Court finds itself unable to uphold the objections of the State in any manner. No other allegations of bias or misconduct have been levelled against the Arbitrator himself and the State has failed to establish as to how any apparent mistake of law was committed by the learned Arbitrator in giving the said Award. 15. The only question which remains for consideration is whether the learned Additional Dist. Judge could reduce the rate of interest awarded by the learned Arbitrator from 17.5% to 9% per annum. In this regard also the position of law is well settled. The jurisdiction of the Court to reduce the rate of interest is not under challenge by the Contractor, though the learned counsel for the Contractor submitted that the learned Additional Dist. Judge ought not to have reduced the interest rate from 17% to 9%. However, it is 1 equally true that even the Apex Court in various judgments cited at the Bar reduced the rate of interest in consonance with the present prevailing bank interest rate in some cases to 9% and in some cases even to 6%. Falling bank interest rate is a phenomenon which cannot be disputed and denied and during the length of litigation, if the contractor was to get same old high 1 rate of interest, it may unnecessarily cause unjust enrichment.
Falling bank interest rate is a phenomenon which cannot be disputed and denied and during the length of litigation, if the contractor was to get same old high 1 rate of interest, it may unnecessarily cause unjust enrichment. Therefore, this Court is of the opinion that reduction of rate of interest from 17.5% to 9% per annum is justified and is not required to be upset by this Court in appellate jurisdiction. 16. Consequently, all the appeals filed by the State as well as the 2 Contractor in respect of two agreements in question are liable to be dismissed and same are dismissed. No order as to costs.Appeal Dismissed. *******