JUDGMENT Dev Darshan Sud, J.- Both these petitions are being disposed of by this Judgment as they arise out of the same award made by the Arbitrator on 17th March, 2007. By an order dated 27.3.2003 in OMP No.65 of 2003, Shri S.S. Juneja was appointed as an Arbitrator to decide the disputes between the parties to this petition. 2. By the impugned award, the Arbitrator has allowed part of the claims made by the claimant-respondent and dismissed the counter claims of the petitioners-State which has now challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act’) on various grounds. 3. In his award the Arbitrator awards the following amounts to the claimants:- 4. The first ground urged by the learned counsel appearing for the petitioner is that the claims of the claimants were barred by limitation. He submits that every payment, made by the State, constituted a separate cause of action and limitation could not be taken/calculated from the date of the submission and payment of the final bill. 5. While dealing with this objection, the Arbitrator has dealt with this objection in detail. He holds that the 37th running bill was prepared by the respondent-Executive Engineer in the year 2000. The finding is:- “B.4.8 I find that in 37th & R/Bill, prepared by respondent Executive Engineer in year 2000. In this bill work has been shown as complete and in that bill the claimant’s has claimed escalation with labour factor of 8.2 which was allowed & passed for 0.2 only & after 37th & R/bill no bill was brought on the record of arbitration by respondents. So I held payment was finally denied in 37th R/bill passed during 10/2000 & thereafter claimant approaches respondent/court for arbitration in 2001 and reference is well within limitation period and I therefore our rule, this preliminary objection.” 6. No exception can be taken to this finding. There is nothing in the contract or in evidence otherwise to show that every payment in the running bill constituted a separate cause of action. The Arbitrator took note of the fact that the work was completed on 17.6.1999 and the final bill passed in the year 2000. No exception can be taken to this finding. There is nothing in the contract or in evidence otherwise to show that every payment in the running bill constituted a separate cause of action. The Arbitrator took note of the fact that the work was completed on 17.6.1999 and the final bill passed in the year 2000. The Arbitrator relies upon clause-60 of the contract agreement (Volume-I) and holds that according to clause 60(1)(c) all payments are to be treated as advance and are to be adjusted and modified subsequently. This reasoning of the Arbitrator cannot be faulted with. 7. The second objection urged by the claimant was with respect to the quality of the construction made by the contractor. Submission made is that it was implied and implicit in the contract that the bridge, which was constructed, should have been in accordance with the standards of quality required for such a structure. Learned counsel submits that no load test for ascertaining the quality of the bridge having been carried out which was fundamental to the contract, the Arbitrator was wrong in holding that the completed work quality wise and quantity wise, was infact carried out by the contractor. This submission cannot be accepted. I need not detail the documents negativing this contention of the contractor as the Arbitrator has discussed this aspect in detail. He holds:- Claim No. Brief title of claim Amount claim(Rs.) Amount awarded Total (Rs.) (4+5) 1 2 3 4 5 6 1. Payment of extra Item of RCC Key 47,357 + Interest 47,357 63,932 1,11,289 2. Change of grade of concrete M25 to M35 95,004 + Interest 86,247 1,06,084 1,92,331 3. Extra steel & concrete in return walls 1,17,676 + Interest Nil Nil Nil 4. Change of Dia of steel from 8mm to 10mm. 86,207 +Interest 86,207 64,655 1,50,862 5. Excess Recovery of hire charges 71,535 +Interest 41,367 29,784 71,151 6. Balance escalation under clause-70 6,13,95,080 +Interest 16,01,933 4,80,580 20,82,513 7. Release of security deposit 1,00,000 (In shape of NSC’s) 1,00,000 (In shape of NSC’s) Security deposited in shape of NSC’s to be returned along with interest earned 8. Refund of withhold amount 67,500 67,500 67,500 9. Interest 24% per annum 12% from date of from date of petition i.e. 1.4.03 claim petition till date of award & till date of decision & up to final payment. Refund of withhold amount 67,500 67,500 67,500 9. Interest 24% per annum 12% from date of from date of petition i.e. 1.4.03 claim petition till date of award & till date of decision & up to final payment. further from date of award till actual realization of award money. Total 6,18,80,359 19,30,611 2,64,466 26,75,646 Interest + return of NSC’s of Rs.1,00,000 + Interest earned or Bank guarantee to be returned Interest as per claim No.9 “D.4.15. This tribunal has gone through the corrigendum & at serial No.3 it is added to delete “(including test loading” for various components of the work”. And as such I held that price of load test was not agreed by the respondents and not part of contract agreement in spirit of pretender bid clause in tender documents/contract agreement. 1. D.4.16 So I held that there was no provision of testing of spans in contract agreement & No. price for testing of spans was agreed by respondent and accordingly tender document was not amended as per clause 2.5.6 sheet NO.8 section-II Vol.I of tender documents/contract agreement. 2. D.4.17 It is also part of proceedings that respondents ordered the claimant to carry out load testing of spans, claimant gave detail design and drawing for testing of spans on 11.02.1999 & rate for loan lest vide letter dated 05.06.1999 (Exhibit XX-12 & XX-14 of list of documents produced by claimant to tribunal during hearing on 24.4.2005). Design and drawing was approved after a gap of more than two years on 05.12.2001 (Exhibit XX-15). But respondent insisted to carryout test as per price available in minutes of pre-bid meeting, which was not agreed by claimant respondent. Executive Engineer vide his letter No.474849 dt.07.09.2002 (Annexure at page 31 of reply on behalf of Executive Engineer Nurpur No.11436 dt.04.03.2004) in Deptt’s case. This notice in its concluding letter read as under 3. D.4.18 “You are therefore again requested to do the load test of the bridge as agreed by you vide your undertaking dated 21.4.1997 by 30.09.2002, failing which this office will be constrained to get the load test done by some other agency at your risk and cost.” 4. D.4.19. This notice in its concluding letter read as under 3. D.4.18 “You are therefore again requested to do the load test of the bridge as agreed by you vide your undertaking dated 21.4.1997 by 30.09.2002, failing which this office will be constrained to get the load test done by some other agency at your risk and cost.” 4. D.4.19. Buton specific question of sole arbitrator, during course of 26th hearing held on 02.09.2006 and 9th (27th combined hearing) held on 18.10.2006 in Deptt’s case, respondent Executive Engineer informed this tribunal that load test is not carried out so for & bridge has not been opened for traffic. Executive Engineer volunteered that load test was not carried out due to pending arbitration case. 1. D.4.20 although this tribunal never issued anyorder on subject of load test and it is also a matter of record that respondent never approached this tribunal with request for carrying out load test. So plea of not conducting load test through alternate agency due to arbitration does not stand. It is also a matter of record of arbitration that even no offers/rates were invited by respondent state/Executive Engineer for conducting load test through alternative agency. 2. D.4.21 In view of above, reasons qualitative non-completion of bridge due to conducting of load test by claimant does not stand.” 8. During the course of arguments on a specific query being put by the Court as to whether the bridge was functional, it was submitted that infact the bridge was being used and there was regular traffic. The objection so urged, therefore, deserves to be rejected. 9. On the third aspect it has been urged that the labour factor for escalation awarded was high, the Arbitrator finds as a fact that in the agreement it was 8.2 and while dealing with this claim, a factor of 0.4 was awarded by the Arbitrator. I do not find that such award is in violation of the public policy of India as envisaged by Section 34 of the Act ibid. If the reasoning given by the Arbitrator is considered in detail, he holds not only that the factor of 8.2 was agreed to between the parties but given effect upto a particular point of time, for making payments of escalation in the running bills. The Arbitrator holds that a copy of this agreement as attested with 8.2 was issued to the claimant. The Arbitrator holds that a copy of this agreement as attested with 8.2 was issued to the claimant. This was done within one and half months of the acceptance of the tender. He holds:- “6.4.5. I have also seen the attested copy of agreement issued to claimant. It is correct that on inside cover of this copy it is written by hand “Issued to M/s Inderjit Singh Avtar Singh contractor” with signature of office superintendent and rubber seal of Executive Engineer Jassur Division. Sheet No.3 section-I is also signed by the then Executive Engineer with full signatures. It appear very unlikely to me that inside cover of one of the binded copy of tender documents, submitted by the claimant contractor was available & other loose sheets were taken from uncorrected copy with labour factor `L’ of 8.2 & was issued to claimant as attested copy of agreement. Claimant requested for copy of attested agreement on 30.03.88 i.e. merely less than 1½ month of acceptance of tender. It is not at all possible that such important documents are misplaced with in one and half month of acceptance of tender. If it was so, matter should have got investigated & responsibility for this lapse should have been fixed. Moreover respondent could produce only two copies of tender documents, out of four copies submitted by the claimant so I agree with claimant, where are the remaining two copies. Respondent could not come up with any reply & I have reason to believe that copy issued to claimant contractor as attested copy is one of the copy submitted by claimant as bid documents.” 10. After considering the rival contentions urged, he still scales down the escalation costs to a factor of 0.4. I do not find anything unreasonable in this award nor anything which would suggest that this figure adversely affects public policy. This submission, therefore, deserves to be rejected. 11. One other submission regarding the claim of excess higher charges of the boarding machine has been challenged by the State. Learned counsel has taken me through the detail of the documents as also the evidence on record. Again, the Arbitrator has dealt with this submission in detail and I need not reproduce the entire reasoning of the Arbitrator unless I find that to be arbitrary. This Court in proceedings under Section 34 cannot sit as an appellate Court. Learned counsel has taken me through the detail of the documents as also the evidence on record. Again, the Arbitrator has dealt with this submission in detail and I need not reproduce the entire reasoning of the Arbitrator unless I find that to be arbitrary. This Court in proceedings under Section 34 cannot sit as an appellate Court. A sum of Rs.41,367/-has been awarded by the Arbitrator on this count. There is no perversity in the findings of the Arbitrator. This submission is, therefore, rejected. No other point has been urged before me. This petition is, therefore, dismissed. There shall be no order as to costs. Arbitration Case No.28 of 2007. 12. The State challenges the dismissal of the counter claims by the Arbitrator. Having decided on the other objections raised in the first petition and which objections go to the root of the counter claim, I find that the counter claim(s) of the State have been rightly disallowed by the Arbitrator. This petition is, therefore, dismissed. There shall be no order as to costs.