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2013 DIGILAW 15 (GAU)

State of Tripura v. Ketaki Ranjan Deb

2013-01-07

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. By this appeal, under Section 37 of the Arbitration and Conciliation Act, 1996, the appellant challenged the order dated 04.04.2002, passed by learned District Judge, North Tripura, Kailashahar in T.S. (Arbitration) 1 of 2001. Heard learned counsel, Mr. P. Dutta for the appellant and learned counsel, Mr. K. Indu for the respondent. 2. Pursuant to a notice inviting tender by the Executive Engineer, Kumarghat Division, Government of Tripura, for the work "Construction/ improvement of road from Pecharthal-Fatikroy-Halahali-Chebri (94 km.)/ portion from Pecharthal-Fatikroy (15.66 km.)/Gr-I/Portion from 0 km. to 9 km. in Tripura under NEC programme/Job No. TP/COM/27 I/Portion from 3 km. to 5 km./S.H. Formation", the respondent-contractor participated in the tender process, and Work Order No. F.10(178)/EE/KD/8353-62 dated 31.08.1987 was issued in favour of the respondent-contractor for execution of the work within 12 months reckoning from 15th day after the date of issue of the work order. An agreement was also signed between the appellant, i.e. the Executive Engineer, Kumarghat Division and the respondent-contractor stipulating therein the terms and conditions of the execution of work. Dispute and difference cropped up on the issue of some extra items of works such as clearing of jungle and making of trace path, etc. and the respondent-contractor in due course applied for referring the dispute to the arbitrator as per the terms of agreement. Accordingly, by an order dated 25.09.1998, Engineer-in-chief (PWD) referred the dispute, in terms of the agreement, to the sole arbitrator for settlement of the dispute and accordingly the reference was registered on 06.10.1998 vide No. ARB/KKS/98(16) 7133-35 before the sole arbitrator. Notices were issued to the respective parties by the sole arbitrator and accordingly, the respondent-contractor appeared and submitted his claim statement referring therein the schedule of disputes. The appellant even after receipt of the notice as well as reminders did not turn up and, therefore, arbitrator after elapse of substantial period of time decided the disputes ex parte formulating six issues based on the claim statement and awarded the claim accordingly. The issues and the award made by the arbitrator read as follows: 3. The appellant even after receipt of the notice as well as reminders did not turn up and, therefore, arbitrator after elapse of substantial period of time decided the disputes ex parte formulating six issues based on the claim statement and awarded the claim accordingly. The issues and the award made by the arbitrator read as follows: 3. The appellant being aggrieved and dissatisfied with the award, filed an application under Section 34 of the Arbitration and Conciliation Act before the District Judge, North Tripura, Kailashahar for setting aside the arbitral award which was registered as Case No. TS (Arb.) 1 of 2001, before the learned District Judge, and, after hearing both sides, the learned District Judge, by impugned order dated 04.04.2002, dismissed the petition filed under Section 34 of the Act and having been aggrieved, the appellant preferred the present appeal challenging the judgment/order passed by the learned District Judge. 4. Learned counsel, Mr. Dutta, appearing for the appellant, has submitted that the appellant could not file the counter-statement immediately after receipt of the notice before the sole arbitrator and assigning reason they filed the counter-statement, before the arbitral proceeding was finally taken up for disposal, but the learned arbitrator did not entertain the counter-statement of the appellant and decided the reference ex parte causing serious prejudice to the appellant. The point was raised before the District Judge, but District Judge also arbitrarily decided the point against the appellant. The reference should be sent back to the arbitrator, submits Mr. Dutta, for fair ends of justice as otherwise, public money will be simply misused if the award is upheld. 5. Learned counsel, Mr. Indu, has submitted that enough time was given to the appellant for submitting their counter-statement but they neither submitted counter-statement nor participated in the hearing before the arbitrator and, therefore, the arbitrator had no other option but to hear it ex parte. 6. On going through the award made by the arbitrator as well as the records it appears, the reference was made to the arbitrator on 25.09.1998 and the claimant-respondent filed claim statement on 24.11.1998. The appellant received notice but failed to submit any counter-statement. The arbitrator passed the order of ex parte hearing on 19.02.2000. The observation made by the arbitrator regarding non-submission of the counter-statement reads thus: The respondent did not submit any counter-statement of fact even after repeated reminders. The appellant received notice but failed to submit any counter-statement. The arbitrator passed the order of ex parte hearing on 19.02.2000. The observation made by the arbitrator regarding non-submission of the counter-statement reads thus: The respondent did not submit any counter-statement of fact even after repeated reminders. The respondent did not attend or got represented. The abnormal action of the respondent was reported to the Engineer-in-chief (PWD) vide No. 2(KS)WR/99 dated 11.08.1999 under whom the respondent works. But the situation did not improve. The respondent was provided with sufficient time from October 1998 to February 2000 for submission of counter-statement of fact. Giving due consideration to the non-co-operating attitude of the respondent the case was heard ex parte on 19.02.2000, in the line of decision communicated vide No. 98(16)/ARB/KKS dated 11.01.2000. In response to aforesaid letter respondent did not even take the pain to inform the arbitrator about their inability to attend on 19.02.2000. This situation had compelled the arbitrator to go for ex parte action. However, one letter dated 01.02.2000 reached the office of the arbitrator on 28.02.2000 by post. But by this time the hearing had been completed ex parte. Subsequently, another letter No. 10(506)/EE/KS/Shadow/417-48 dated 20.04.2000, the counter-statement of fact was forwarded to Sri Kataki Ranjan Deb and copy endorsed to the arbitrator without enclosure. 7. The above observation of the arbitrator makes it abundantly clear that the appellant was negligent and guilty of inaction and there was nothing wrong done by the arbitrator in fixing the dispute for ex parte decision on such factual aspect, this court in an appeal under Section 37 of the Act, is not required to enter and decide afresh after 15 years of the reference of dispute. I find no merit at all on this point to interfere in the order passed by the learned District Judge. 8. The next point raised by learned counsel, Mr. Dutta for the appellant, is that the contractor was supposed to execute the work in terms of the agreement. There was no question of any extra item of work to be executed by the contractor outside the purview of the agreement. It was clearly stipulated in the Special Condition Nos. 2, 4 and 7 that the extra work, if any, for making the roads/paths for execution of the work should be done by the contractor for which the contractor cannot claim any extra charges. It was clearly stipulated in the Special Condition Nos. 2, 4 and 7 that the extra work, if any, for making the roads/paths for execution of the work should be done by the contractor for which the contractor cannot claim any extra charges. He has also submitted that the slips were to be removed by the contractor at his own cost and so, the issues which have been decided by the arbitrator in favour of the contractor were altogether contrary to the agreement and, therefore, the learned District Judge was supposed to interfere in the award and remand it to the arbitrator for fresh decision. 9. Learned counsel, Mr. Indu, on the other hand, submitted that extra works are normal phenomena of each and every work. The contractor for effective execution of the work, under the work order, had to undertake those extra works as stipulated in the reference of dispute, considering which the Engineer-in-chief referred the dispute to the arbitrator. So the appellant cannot take the stand that no such extra work was executed by the contractor or that contractor cannot travel beyond the agreement. 10. Whether extra work as claimed by the contractor was executed or not, is a matter of fact, which the contractor claimed and raised the dispute, but not controverted by the appellant by filing any counter-statement and evidence thereof. Under such circumstances, where the reference was decided ex parte and the appellant-Executive Engineer failed to present the counter-statement of facts before the arbitrator with supporting evidence, I find no justification at all to enter into those factual aspects which have already been decided by the arbitrator and affirmed by the District Judge while disposing of application under Section 34 of the Act. 11. Arbitration is an alternative dispute resolution mechanism arising out of an agreement between the parties to the dispute and where the arbitrator resolved the dispute after hearing both sides, the court of law will interfere only on limited grounds as stipulated in Section 34 of the Arbitration and Conciliation Act. While the factual aspects once decided by the arbitrator, court of law under Section 34 or in an appeal under Section 37 is not ordinarily required to enter into the factual aspects and re-appreciate the matter. Every dispute must have a logical end. While the factual aspects once decided by the arbitrator, court of law under Section 34 or in an appeal under Section 37 is not ordinarily required to enter into the factual aspects and re-appreciate the matter. Every dispute must have a logical end. While the arbitrator has already made an award considering the materials placed before him, in course of hearing/ inquiry, I find no justification at all to re-open the matter after 15 years. 12. The appeal, therefore, stands dismissed with cost of ` 2,000. The appellant is directed to satisfy the award immediately in terms of law.