JUDGMENT Sanjay Karol, Judge Contract No.61 of 1998-99 was awarded to Shri Satish Kumar Vij, hereinafter referred to as the Contractor, for the purpose of carrying out work identified as “C/O Sujanpur-Tihra-Sandhole-Marhi-Mandi road (SH:- P/L wearing in km.48/0 to 51/400 and 52/100 to 57/0) and premix carpet in Km.48/0 to 51/400 and 52/100 to 57/0); Agreement No.61 of 1998-99”. The work, which was awarded vide letter No.PW-SKT-AB-Tender/98-13240-50 dated 30.12.98, was to commence on 14.1.1998 and completed within a period of one year, i.e. before 13.1.2000. Though, estimated cost of the work was `10,45,833/- but the tendered amount was of `23,66,113/-. Some work could not be completed within the stipulated period, extension was granted to the Contractor. 2. Disputes, inter alia, with regard to losses incurred by the Contractor for stacking of machinery and idle sitting of labour, arose between the parties. According to the Contractor, bitumen was not supplied by the State within the stipulated period of time, as a result of which work could not be completed. 3.The disputes were referred for arbitration and in terms of the impugned award dated 28.1.2010, the Arbitrator-cum-Superintending Engineer, Arbitration Circle, H.P.P.W.D., Solan, has adjudicated the disputes and passed an award with regard to respective claims and counter­claims of the Contractor and the Executive Engineer (State), to the following effect: AWARD IN FAVOUR OF CLAIMANANT/CONTRACTOR Sr. No. Description of claim Amount Demanded Amount finally Awarded Amount interimly awarded and paid Amount now to be paid Remarks 1. Paymentdue for the workexecuted and notpaid (Amount notmentioned by the claimant/ contractor) Rs.73,325/- Rs.73,327/- s.nil 2. Security Amount Rs.1,00,000/- in cash and Rs.26,146/- in the shape of FDR Rs.1,00,000/- in cash and Rs.26,146/- in the shape of FDR Rs.1,00,000/- in cash and Rs.26,146/- in the shape of FDR Rs.nil 3Amountpayableonaccount of lossincurred due tostackingof machineryand idlesitting of labour Rs.19,90,800/- Rs.nil Rs.nil Rs.nil 4 Profit payable to the @15% on anamount of Rs.23,66,133/- Rs.nil Rs.nils.nil claimant 5.Interest pay able on the amount legally payable to theclaimant @24% perannum Simpleinterest@7.5% perannum on an amount of Rs.1,73,325/- for a period of four and a half years till the date of award. Rs.nil impleInterest@7.5% perannum on an amount of Rs.1,73,325/- for a period of four and a half years till the date of award. 6.Amount payable to theclaimantfor engaging theservices of Junior Engineer. Rs.nil impleInterest@7.5% perannum on an amount of Rs.1,73,325/- for a period of four and a half years till the date of award. 6.Amount payable to theclaimantfor engaging theservices of Junior Engineer. Rs.12,000/- Rs.nil Rs.nil Rs.nil AWARD IN FAVOUR OF RESPONDNET/EXECUTIVE ENGINEER Sr.No. Description Amount demanded Amount awarded Remarks of claim 1 10% compensation for delay under clause-2 of the agreement. Rs.2,36,611/- Rs.nil Counter-claim withdrawn 2. Forfeiture of security amount. Rs.99,990/- Rs.nil Counter-claim withdrawn 4. It is not in dispute that the State has accepted the award. However, Contractor has assailed the same by filing the instant petition under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). 5. Challenge is to the findings with regard to Claim No.3, loss incurred on account of stacking of machinery and idle sitting of labour. It is argued that from January to April, 1999 since no bitumen was supplied, Arbitrator wrongly interpreted Clause-10 of the Agreement, while rejecting the claim. 6. It is not in dispute that Contractor was supplied 369 drums of bitumen between 28.4.1999 and December, 1999. Arbitrator came to the conclusion that there was sufficient work, which was required to be completed by the Contractor, prior to tarring of the road, for which bitumen was required. Before the Arbitrator, claim set up by the Contractor was insufficient supply of material (bitumen) before June, 1999, but however, before the Court Mr. Sumit Raj Sharma, learned counsel for the Contractor, fairly stated that claim with regard to idle sitting of labour and machinery pertains only for the period January to April, 1999. 7. While rejecting the claims, the Arbitrator has taken into account the linear chart and supporting documents showing that work with regard to wearing coat could not be completed by the Contractor within the stipulated period of time. Arbitrator has clearly held that the Contractor was himself lax in executing the work. The work included “laying wearing coat with broken or crushed stone aggregate” “including sorting and spreading to template and consolidation with power road roller to the required gradient and camber including spreading and consolidation of binding materials complete as per instruction of Engineer-in-charge including carriage of materials in all leads and lifts”. 8. Contractor was assigned additional work, which he readily agreed to do. This was not in contravention of any of the terms of the agreement. 8. Contractor was assigned additional work, which he readily agreed to do. This was not in contravention of any of the terms of the agreement. As such, the Contractor utilized the labour present on the spot. 9. The question, which needs to be considered, is as to whether, in the face of delay on the part of the Executive Engineer to supply the material, whether the Contractor, under the agreement, is entitled for compensation or not? The answer to the same lies in Clause-10 of the Agreement. In this regard, it would be beneficial to reproduce the same as under: “If the specifications or schedule of items provided for the use of any special materials to be supplied from Engineer-in-charge’s stores, or if it is required that the contractor shall use certain stores to be provided by the Engineer-in­charge as shown in the schedule of materials hereto annexed, the contractor shall be bound to procure and shall be supplied such materials and stores as are from time to time required to be used by him for the purposes of the contract only and the value of the full quantity of materials and stores so supplied at the rates specified in the said schedule of materials may be set off or deducted from any sums then due or thereafter to become due to the contractor under the contract or otherwise or against or from the security deposit or the proceeds of sale thereof if the same is held in government securities, the same or a sufficient portion thereof being in this case sold for the purpose. All materials so supplied to the contractor shall remain the absolute property of Government and shall not be removed on any account from the site of the work and shall be at all time open to inspection by the Engineer-in-charge. All materials so supplied to the contractor shall remain the absolute property of Government and shall not be removed on any account from the site of the work and shall be at all time open to inspection by the Engineer-in-charge. Any such materials remaining un-used and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer-in-charge at a place directed by him, if by a notice in writing under his hand he shall so require but the contractor shall not be entitled to return any such materials unless with such consent and shall have no claim for compensation on account of any such materials so supplied to him as aforesaid not being used by him or for any wastage in or damages to any such materials. On being required to return the store/materials the contractor shall hand over the stores/materials on being paid or credited such price as the Engineer-in-charge shall determine having due regard to the condition of the stores/materials. The price allowed to the contractor, however, shall not exceed the amount charged to him excluding the storage, if any. The decision of the Engineer-in-charge shall be final and conclusive. In the event of breach of the aforesaid condition, the contractor shall in addition to throwing himself open to account for contravention of the items of the licenses or permit and/or criminal breach of trust be liable to govt. For all advantages or profits resulting or which in the usual course would have resulted to him by reason of such breach. Provided that the contractor shall in no case be entitled to any compensation or damages on account of any delay in supply or non-supply thereof all or any such materials and stores. Provided further that the contractor shall be bound to execute the entire work if the materials are supplied by the Government within the scheduled time for completion of the work plus 50 percent thereof (Scheduled time 6 months if the time of completion of work exceeds 12 months) but if a part only of the materials has been supplied within the aforesaid period then the contractor shall be bound to do so much of the work as may be possible with the materials and stores supplied in the aforesaid period. For the completion of the rest of the work the contractor shall be entitled to such extension of time as may be determined by the Engineer-in-charge whose decision in this regard shall be final.” (Emphasis supplied) 10. Noticeably, contract itself disentitles the Contractor for claim of compensation or damages on account of any delay in supply or non-supply of the material. In this view of the matter, no fault can be found with the findings of the Arbitrator. 11.Mr. Sumit Raj Sharma, learned counsel, has referred to and relied upon the decision rendered by the learned Single Judge of the High Court of Delhi, as reported in M/s Simplex Concrete Piles (India) Ltd. versus Union of India, 2010(2) ILR (Del) 699. In my considered view, the decision is not applicable to the given facts. 12. Significantly, the Apex Court in General Manager, Northern Railways and another versus Sarvesh Chopra, (2002) 4 SCC 45 , has held that a claim on account of losses, resulting from delay by an employer, would be entertainable if (i) the contractor repudiates the contract exercising his right to do so under Section 55 of the Indian Contract Act, 1872 or (ii) employer extends time by entering into supplemental agreement or providing for compensation for delay, or (iii) contractor gives notice for compensation for escalation of rates or delay would have to be made by the employer and the employer accepts performance by the contractor despite delay or price rise. 13.In Oil & Natural Gas Corporation Ltd. versus Saw Pipes Ltd., (2003) 5 SCC 705 , apex Court reiterated the aforesaid principle by holding as under: “56. 13.In Oil & Natural Gas Corporation Ltd. versus Saw Pipes Ltd., (2003) 5 SCC 705 , apex Court reiterated the aforesaid principle by holding as under: “56. Dealing with the similar question, this Court in M/s Alopi Parshad & Sons Ltd. v. The Union of India [ (1960) 2 SCR 793 ] observed that the extent of jurisdiction of the Court to set aside the award on the ground of an error in making the award is well defined and held thus :- “The award of an arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it, as for instance, a note appended by the arbitrators, stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous - Champsey Bhara and Company v. Jivaraj Balloo Spinning and Weaving Company Limited [L.R. 50 IA 324]. If however, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of its being set aside - In the matter of an arbitration between King and Duveen and others [LR (1913) 2 KBD 32] and Government of Kelantan v. Duff Development Company Limited [LR 1923 AC 395]. Thereafter, the Court held that if there was a general reference and not a specific reference on any question of law then the award can be set aside if it demonstrated to be erroneous on the face of it. The Court, in that case, considering Section 56 of the Indian Contract Act held that the Indian Contract Act does not enable a party to a contract to ignore the express provisions thereof and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity and that the arbitrators were not justified in ignoring the expressed terms of the contract prescribing the remuneration payable to the agents. The aforesaid law has been followed continuously. The aforesaid law has been followed continuously. {Re: Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and another [ (1999) 9 SCC 283 ], Sikkim Subba Associates v. State of Sikkim [ (2001) 5 SCC 629 ] and G.M. Northern Raitray and another v. Sarvesh Chopra [ (2002) 4 SCC 45 )] : 2002(2) RCR (Civil) SC 466.” 14. The decision in Sarvesh Chopra (supra) stands reiterated by the apex Court in Delhi Development Authority versus R.S. Sharma and Company, New Delhi, (2008) 13 SCC 80 . 15.The ratio of law laid down in Ramachandra Reddy & Co. versus State of A.P. and others, (2001) 4 SCC 241 is squarely applicable to the facts in hand. 16. Apex Court in Oil and Natural Gas Corporation versus Wig Brothers Builders and Engineers Private Limited, (2010) 13 SCC 377 ; and Union of India versus Chandalavada Gopalakrishna Murthy and others, (2010) 14 SCC 633 , while construing similar provisions, has held that award passed in violation of the bar contained in the contract has to be held as one beyond the jurisdiction of the Arbitrator. 17.The contractor had an option to rescind the contract. He did not do so. Also he did not make any claims, specific with regard to labour and machinery lying idle on the site, on account of non-supply of bitumen. 18.View taken in the instant case is primarily based on the fact that at no point in time did the contractor exercise his right under the provisions of the Contract Act, claiming the clause to be illegal, void, arbitrary or exercise his right under the agreement of rescinding the contract on account of non-supply of bitumen. Also, prior to issuance of the material, he did not stake any claim for damages. In any event, there is nothing on record to substantiate the claim of damages/compensation/escalation. Also, contractor did not state that he shall claim damages/extra rates on account of the delay, which condition was actually accepted by the State. 19.Mr. Sumit Raj Sharma, learned counsel, has invited my attention to communications dated 4.3.1999, 3.5.1999 and 20.5.1999 to contend that the contractor had clearly put the State to notice with regard to losses suffered by him. But it is not so. 20.Significantly, Arbitrator has taken into account the factum of supply of bitumen by the State in the month of April. Sumit Raj Sharma, learned counsel, has invited my attention to communications dated 4.3.1999, 3.5.1999 and 20.5.1999 to contend that the contractor had clearly put the State to notice with regard to losses suffered by him. But it is not so. 20.Significantly, Arbitrator has taken into account the factum of supply of bitumen by the State in the month of April. By taking into account the material so produced on record by the parties and adopting sound and plausible reasoning, the Arbitrator arrived at a conclusion that contractor himself could not complete the work prior to execution of the basic work for which bitumen was required. Relevant finding of the Arbitrator in this regard are as under: “...The second reason cited by the claimant for non-completion of work, and the labour and machinery remaining idle and thereby causing loss to him is that the respondent/EE did not supply him bitumen in adequate quantity. The linear chart and supporting documents as submitted by the respondent/EE as aforesaid reveal that the wearing coat for receiving premix carpet was completed by the claimant/contr. Sometime in between 22.6.2000 (the date of record entry of stone aggregate stacks) and 22.10.2000 (the date of the last record entry of wearing coat in the M.B) whereas the stipulated date of completion of the work was 13.1.2000. There was no reason why the claimant/contractor could not have completed wearing coat (including that for correction/repair) within the stipulated date of completion. This shows that the claimant was also lax in executing the work. Upto 27.5.99 wearing coat between km.52/100 to 57/0 i.e. in 4.90 km. length was ready to receive premix carpet. But the respondent/EE supplied only 135 bitumen drums in four installments which were just sufficient to cover a length of 2.085 km. length. But the claimant/contractor did not utilize the said quantity fully (laid premix carpet only in 1.505 km. length) and 37 bitumen drums still lay unconsumed in 10/99 when he was further issued 214 bitumen drums after a lapse of about five months. Thereafter two more installments of 18 and 10 bitumen drums were supplied. After 10/99 the claimant utilized 271 bitumen drums out of 279 drums in a period of almost three months i.e. by 29.1.2000 to lay premix carpet between km.51/0 to 51/375 and km.52/100 to 55/495 i.e. in a length of 3.77 km. Thereafter two more installments of 18 and 10 bitumen drums were supplied. After 10/99 the claimant utilized 271 bitumen drums out of 279 drums in a period of almost three months i.e. by 29.1.2000 to lay premix carpet between km.51/0 to 51/375 and km.52/100 to 55/495 i.e. in a length of 3.77 km. The respondent/EE issued no further bitumen for laying premix carpet in the remaining length between km.48/0 to 51/0. There is no evidence that the claimant/contractor made any request after his letter dated 15.11.99 (annexure C-4 to statement of facts) to the respondent/EE to supply bitumen and that letter refused the supply, though the work remained in progress even after 22.6.2000 (the date of second last record entry in the M.B.), the last record entry of work in the M.B. having been made on 22.10.2000. Thus while the respondent/EE failed to ensure adequate and smooth supply of bitumen to a certain extent, the claimant executed the work, especially wearing coat to his convenience and he had been lax also...” 21.Also, it be observed that except for the aforesaid communications, no documentary evidence was led by the contractor, such as the register maintained under the various statutes, including receipt of payments made to the labourers or the fact that plant and machinery were deputed at the relevant site prior to April 1999. Correspondence of the Contractor has to be examined in the backdrop of the events unfurling during the execution of the work. There is no evidence on record with regard to the actual loss suffered by the contractor. 22.Hence, for all the aforesaid reasons, it cannot be said that the award passed by the Arbitrator falls within any one of the exceptions laid down under Section 34 of the Act, warranting interference by this Court. The petition is dismissed. Petition stands disposed of, so also pending application(s), if any.