Heavy Engineering Corporation Ltd. Ranchi v. Ratan Lal Agarwal
2012-08-06
N.N.TIWARI
body2012
DigiLaw.ai
JUDGMENT N.N.Tiwari,J.: This appeal is against the order passed by learned Sub-Judge st, Ranchi in Misc. Case no.1 of 1988 arising out of Arbitration Title Suit no.227 of 1987. By the said order, the appellant’s petition filed under section 30 read with section 33 of the Arbitration Act, 1940 praying for setting aside the arbitration award has been rejected. 2. The fact of the case, in short, is that the plaintiff-respondent was awarded contract for white washing and colour washing in Heavy Engineering Corporation ('HEC' for short) Township under the Agreement no.AM(C-(III)/5/81-82 for sector-3 of the Township for Rs.60,682.50 paise and under Agreement no.AM(C-II)/21/81-82 for sector-1 and sector-2 of the Township for Rs.62,862/-, being total value of Rs.1,23,545.25 paise. The plaintiff was given work order for commencing the work from 06.01.1982. The time for completion of the work was 06.04.1982 for colour washing and 06.07.1982 for white washing. 3. According to the plaintiff, he had completed the work within the scheduled time, but the respondent made part payment of only Rs.40,000/-out of the total value of the contract. Balance amount of Rs.83,545.26 paise is still due. Besides the said balance amount Rs.5,000/-for executing the extra work, Rs.10,000/-security money and the compensatory amount of Rs.25,000/-on account of the blockage of capital are also payable to the plaintiff. In terms of arbitration clause in the agreement and with the intervention of the Court and by judgment dated 14.02.1985 passed in Arbitration Title Suit no.56/84, the defendant-appellant nominated one of its officers Shri S.K.Jain, Deputy General Manager, as the sole Arbitrator. The dispute was referred to the said Arbitrator. The sole Arbitrator rendered its Award and submitted the same to the Court. In Arbitration Suit no.227 of 1987 notices were issued to the parties calling upon them to 2. show cause as to why award should not be made rule of the Court. The defendant-appellant filed its objection under section 30 read with section 33 of the Arbitration Act, which was registered as Misc. Case no.1 of 1988. The plaintiff-respondent filed rejoinder to the objection of the applicant-defendant. 4. The defendant-appellant in its objection challenged the Award dated 07.09.1987 mainly on the grounds that: (I) Arbitrator has misconducted the proceeding by ignoring the material documents and arriving at inconsistent conclusion in its award. (II) Arbitrator passed its Award by going beyond the terms of reference.
The plaintiff-respondent filed rejoinder to the objection of the applicant-defendant. 4. The defendant-appellant in its objection challenged the Award dated 07.09.1987 mainly on the grounds that: (I) Arbitrator has misconducted the proceeding by ignoring the material documents and arriving at inconsistent conclusion in its award. (II) Arbitrator passed its Award by going beyond the terms of reference. (III) The claimant had not claimed that he had completed the work. He had said that the work could not be measured as it was washed away in rains. But the Arbitrator imports its personal knowledge in holding that white washing and colour washing is perishable item and since it was done before monsoon, measurement of the work was not possible as it was washed away by rains. (IV) The Arbitrator was given time for making award till 31.07.1987. But on 28.06.1987, the Arbitrator had applied to the court for extension of period though the Arbitrator has no authority to make such application. (V) Interest has been awarded beyond the Arbitrator’s authority. (VI) The claimant had not raised dispute regarding interest before the management and, as such, the dispute comes within the excepted matter as per Clause-78((1) of the General Conditions of the Contract. 5. Learned court below heard the parties on the said objection and discussed the facts and materials in detail and held that: (a) The Arbitrator had submitted Award on 07.09.1987 within the period extended by the court. Section 28 of the Arbitration Act provides power to the court to extend time for making the Award at any stage. In the present case, the court extended time upto 30.09.1987. Therefore, the Award has been rendered within time and the ground taken by the objector-respondent-appellant is baseless and untenable. (b) The defendant’s objection is that the sole arbitrator has committed gross misconduct in giving the award inspite of the certificate given by the contractor in the measurement book that nothing was due towards the work is untenable. On perusal of the measurement book, it was found that there was no such acceptance by the contractor and on that account also the Arbitrator has not misconducted and there was no merit in such objection. (c) The other grounds regarding the termination of the contract etc. were well considered by the Arbitrator. The Arbitrator has given a reasoned Award point-wise. The Arbitrator has not gone beyond its jurisdiction and the ambit of reference.
(c) The other grounds regarding the termination of the contract etc. were well considered by the Arbitrator. The Arbitrator has given a reasoned Award point-wise. The Arbitrator has not gone beyond its jurisdiction and the ambit of reference. The court hearing objection under section 30 of the Arbitration Act has limited power. The court does not sit in appeal and examine the Award on merit with reference to the material produced before the Arbitrator and, as such, the said grounds are not tenable. The objection that the interest awarded was beyond the authority of Arbitrator is also without any basis. There is no error in the Arbitration Award. Even on that count, the Arbitrator has full authority to award interest. (d) The other grounds are also not tenable and without any basis. The sole Arbitrator has made its Award after considering the material and documents on record. There was no apparent error in the Award. There was no legal misconduct on the part of the Arbitrator and there was no defect in the Award. The Award is reasoned and based on facts, materials and documents on record. There is no merit in the objection raised by the defendant-appellant and there is no ground for setting aside the Award. With the said considered finding, learned court below has rejected the appellant’s objection by the impugned order. 6. The defendant-appellant has challenged the said Award mainly on the grounds that the Arbitrator has misconducted by seeking extension of period for making award and that the Arbitrator has no authority to grant interest, but the said vital misconduct has also been ignored by learned court below. 7. Mr. Rajesh Kumar, learned counsel, appearing on behalf of the defendant-appellant, in support of the said grounds, submitted that the Arbitrator, which given time for making its Award till 31.07.1987. Thereafter, the parties did not agree for further extension of time. The Arbitrator had become defunct after 31.07.1987 and, as such, the Award submitted by it on 07.09.1987 is invalid. He further submitted that the sole Arbitrator committed gross misconduct in ignoring the certificate by the contractor on the measurement book, accepting the payment as full and final.
Thereafter, the parties did not agree for further extension of time. The Arbitrator had become defunct after 31.07.1987 and, as such, the Award submitted by it on 07.09.1987 is invalid. He further submitted that the sole Arbitrator committed gross misconduct in ignoring the certificate by the contractor on the measurement book, accepting the payment as full and final. Learned counsel for the appellant submitted that once the plaintiff had accepted payment in full and by way of final settlement of the contract, subsequent claim for further amount in respect of the same work is not an arbitrable dispute. Learned counsel has referred to and relied upon the decision of the Supreme Court in the case of “M/s. P.K.Ramaiah and Company Vrs. Chairman & Managing Director, National Thermal Power Corporation” [1994Supp(3)SCC126]. He further submitted that the Arbitrator awarded interest beyond its authority and on that count also, the Arbitrator committed gross misconduct in making the Award. 8. Learned counsel, appearing on behalf of the respondent, on the other hand, submitted that the appellant had taken same ground in its objection before learned court below and had made almost the same argument. Learned court below, after due discussion and consideration of the facts, materials and the provisions of law, has rejected the said contentions/grounds of the defendant-appellant. He further submitted that the Arbitrator has made a reasoned Award after due consideration of all the relevant aspects. Learned court below has rightly found and held that there is no error in the Award and there is no legal misconduct on the part of the Arbitrator. Learned court below has rejected the said objection by recording sound reasons and the order of learned court below does not warrant any interference. 9. Having heard and considered the said submissions of learned counsel, I perused the record. The appellant has given much emphasis on the ground that the Award was given after expiry of period and, as such, the same is a nullity. The proceeding of the Arbitration was terminated on 10.01.1987, but the Award was made and published on 07.09.1987. 10. On perusal of the record, I find that though initially time was given upto 10.01.1987, learned court below had extended time upto 31.07.1987 on the application of the Arbitrator. Ext.A is the order sheet of the court, whereby the time upto 30.09.1987 was extended by the court. 11.
10. On perusal of the record, I find that though initially time was given upto 10.01.1987, learned court below had extended time upto 31.07.1987 on the application of the Arbitrator. Ext.A is the order sheet of the court, whereby the time upto 30.09.1987 was extended by the court. 11. Section 28 of the Arbitration Act, 1940 provides power to the court to enlarge time for making Award, which reads as follows: “Section 28. Power to court only to enlarge time for making Award-(1) the court may, if thinks fit, whether the time for making the Award has expired or not and whether the Award has been made or not, enlarge from time to time the time for making the Award. (2) any provision in an Arbitration agreement whereby the Arbitrators, or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the Award, shall be void and of no effect.” 12. On plain reading of Section 28, it is clear that it confers a very wide power to the court to enlarge time for making the Award at any time. 13. Learned court below has appreciated the said provision and has rightly held that the court has power to extend time for publication of Award at any stage. 14. In the case in hand, the court had extended time up to 30.09.1987 and the Arbitrator had submitted its Award on 09.07.1987, which is well within the period extended by the court. 15 In view of the above, there is no substance in the said ground of the appellant. 16. The next ground that the contractor has admitted that final payment has been made and nothing is due, no such receipt acknowledging final acceptance of payment has been brought on record. 17. I find that the said ground has been duly discussed by learned court below and after proper consideration and on perusal of the measurement book, the court has held that there is no such certificate to show that the claimant accepted the final measurement or payment in full and by way of final settlement of contract. 18. In M/s. P.K.Ramaiah and Company(supra), the Hon’ble Apex Court after considering the facts of the said case held that the unconditional written acceptance of payment in full and final settlement of contract bars further arbitration as there remains no such arbitrable dispute.
18. In M/s. P.K.Ramaiah and Company(supra), the Hon’ble Apex Court after considering the facts of the said case held that the unconditional written acceptance of payment in full and final settlement of contract bars further arbitration as there remains no such arbitrable dispute. In the said case, the claimant had acknowledged full and final satisfaction by a receipt in writing and the amount was received unconditionally. Thus, there was accord and satisfaction of the claim of final settlement in the said case. But in the instant case, there is no such receipt in writing of full satisfaction by way of final settlement. The ratio of the said decision of the Supreme Court is, thus, not applicable to the facts of the instant case. 19. Lastly, the ground that the Arbitrator had no authority to award interest is also untenable. 20. On perusal of the Award of the Arbitrator, I find that learned Arbitrator has awarded interest @ 14% per annum on the awarded sum from the date after three months from the date of Award till the passing of the decree or payment of the awarded amount, whichever is earlier. 21. Under the Interest Act, 1978, the Court defined under section 2(a) includes an 'Arbitrator'. In Interest Act, 1839, the Court was not defined to include Arbitrator. As a result, in the cases after the commencement of the Interest Act, 1978(which came into force w.e.f. 19-08-81) an Arbitrator has the same power as the court to Award interest. 22. The Arbitrator has, thus, power to grant interest pendente lite as provide under section 34 of the Code of Civil Procedure. 23. Learned court below has considered the said aspect and has rightly rejected the objection of the respondent-appellant. 24. I, therefore, find no ground made out to interfere with the impugned order of learned court below. 25. This appeal is, accordingly, dismissed. However, there is no order as to costs.