JUDGMENT Tarlok Singh Chauhan, J —The defendants are the appellants, who aggrieved by the judgment and decree dated 04.06.2005 passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Suit No. 1-K/04/03/99 whereby the suit of the plaintiff/respondent has been decreed, have filed the Regular First Appeal before this Court. 2. Brief facts of the case are that the respondent/plaintiff filed Civil Suit No. 1-K/04/03/99 in the Court of Additional District Judge, Fast Track Court, Kangra at Dharamshala for declaration with consequential relief of permanent injunction against the appellants /defendants on the grounds that the tender for the execution of the construction work of Block-II of the College of Veterinary & Animal Sciences at Holta, CSK HP Krishi Vishwavidyalaya, Palampur was issued in favour of the respondent/plaintiff on 27.8.1997. Agreement in the prescribed standard form (PWD-8) was entered into vide agreement No. 194(D) of 1997-98. The work in question was to be completed in nine months from the 15th day of the issuance of the letter of acceptance. According to the agreement, time was the essence and the work was required to commence by 4th November, 1997 and was to be completed till 3rd August, 1998. As per the contract, the appellants/defendants were to make available the site for work, requisite designs, instructions for execution of the work and requisite quantity of the construction material i.e. the cement, steel etc. It was averred by the respondent/plaintiff that the appellants/ defendants failed to honour the terms and conditions of the agreement, as a result of which the respondent/plaintiff could not execute the work. It was further averred that the appellants/ defendants did not make available the designs, drawings and the material and also the running payment of the work executed due to which the respondent/plaintiff became entitled to be compensated for the increased cost of execution of the work. It was further stipulated in the contract/agreement that in the event of delay in execution of the work by the contractor/plaintiff, the appellants/defendants would be entitled to such amount of compensation not exceeding 10% of the value of the work and the same shall be determined by the Estate Officer concerned. It was further stipulated in the contract/agreement that in the event of delay in execution of the work by the contractor/plaintiff, the appellants/defendants would be entitled to such amount of compensation not exceeding 10% of the value of the work and the same shall be determined by the Estate Officer concerned. It was the case of the plaintiff/respondent that the appellant/defendant No.2 while exercising the powers of Estate Officer, without affording any opportunity to the respondent/ plaintiff, vide letter dated 23rd January, 1999 imposed an amount of Rs.4, 24, 560/- as compensation for the alleged delay in completion of the work. It was alleged by the plaintiff that he approached the appellant/defendant No.2 for reviewing the order of imposition of compensation and the appellant No.2 vide letter dated 16th April, 1999 rescinded the contract allotted in favour of the respondent/plaintiff and forfeited his deposited security without affording any opportunity to the respondent/plaintiff. The plaintiff challenged the said order being illegal, arbitrary, null and void. Further case of the plaintiff was that the matter is beyond the scope of Arbitration Clause stipulated in the agreement and the same cannot be referred to the Arbitrator and had to be decided by the Court. It was further prayed that a declaratory decree be passed in favour of the plaintiff by declaring the orders dated 23rd January, 1999 and 16th April, 1999 to be null and void being illegal and without jurisdiction. 3. The suit filed by the respondent/plaintiff was contested by the appellants/defendants by raising preliminary objection that in view of Clause-25 of the Agreement, there existed an arbitration clause, hence the Civil Court has no jurisdiction to try the present case. While denying the rest of the averments made in the plaint, it was specifically submitted that the respondent/plaintiff was made available the site, designs/drawings, construction material well in time besides giving him instructions and running payment. It was averred that the site was handed over to the respondent/plaintiff on 3rd November, 1999, drawings were supplied on 6th November, 1999 and the construction material was supplied on 3rd & 28th November, 1999, respectively. It was further averred that the delay on the part of the respondent/plaintiff was due to the reason that the respondent/plaintiff did not employ sufficient labour for execution of the work despite various reminders issued to him for expediting the work by employing sufficient number of labourers. It was further averred that the delay on the part of the respondent/plaintiff was due to the reason that the respondent/plaintiff did not employ sufficient labour for execution of the work despite various reminders issued to him for expediting the work by employing sufficient number of labourers. It was further averred by the defendants that action under Clause-2 of the agreement was initiated on failure of the respondent/plaintiff in completion of the work within the stipulated time period as contemplated in the agreement. Action under Clause-2 was initiate by the appellant/defendant No.2 after obtaining necessary permission from the Estate Officer. 4. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled for a decree of declaration that the order passed by defendant No.2 dated 23.1.1999 and 16.4.1999 is illegal, void and without jurisdiction and has no binding effect upon the rights, title and interest of the plaintiff? OPP 2. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction as alleged? OPP 3. Whether the Civil Court has no jurisdiction to entertain the present suit? OPD 4. Whether the suit is barred under the provision of Arbitration and Conciliation Act? OPD 5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 6. Whether the suit is not within time? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the suit is not correctly valued for the purposes of court fee and jurisdiction? OPD 9. Relief. 5. After recording the evidence and evaluating the same, the suit of the plaintiff came to be decreed in the following terms: "In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed with costs to the effect that the orders of the defendants dated 23.1.1999 and 16.4.1999 are illegal and null and void and not binding upon the plaintiff and the same has no effect on the right, title or interest of plaintiff with consequential relief of injunction restraining the defendants from giving effect to the above illegal orders. However, this order is without prejudice to the right of defendants to determine the compensation, if any, under Clauses 2 and 25 of the agreement, but the same shall be determined only in accordance with the directions given by the Hon''ble Supreme Court in Vishwanath Sood''s case mentionedand such proceedings, if any, be initiated and concluded within three months from the date of this decision so as to avoid any unnecessary financial hardship to the plaintiff who is prosecuting this case for the last more than six years and the defendants have withheld some of his payments. Decree sheet be drawn accordingly. The file after completion be consigned to record room." 6. Aggrieved by the aforesaid judgment and decree, the appellants/defendants have filed the present appeal on the grounds that the Court below had no jurisdiction and the matter was required to be referred to the Arbitrator as in the agreement executed between the parties contained an Arbitration Clause. It is further averred that the findings recorded on issue No.1 are perverse as it has miserably failed to appreciate the fact that the orders dated 23.1.1999 and 15.4.1999 were passed by the appellant/defendant No.1 only after it had obtained necessary permission from the Estate Officer. The learned trial Court further erred in coming to the conclusion that no opportunity was afforded to the plaintiff before passing of the aforesaid orders. I have heard learned counsel for the parties and have gone through the records of the case carefully. 7. Adverting to the first submission regarding there being an Arbitration Clause, it is not in dispute that earlier also while the proceedings were pending before the learned trial Court, the appellants had moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ''Act'') for referring the matter to the Arbitrator as according to them, the same contained an Arbitration Clause. However, the application was rejected vide order dated 7.4.1999 and the said order was never assailed. 8. That apart, it would be noticed that as per Clauses 2 and 25 of the Agreement, the amount of compensation chargeable under Clause 2 has to be decided in accordance with the levy of the agreement being outside the purview of the arbitration and cannot be referred for arbitration. 9. 8. That apart, it would be noticed that as per Clauses 2 and 25 of the Agreement, the amount of compensation chargeable under Clause 2 has to be decided in accordance with the levy of the agreement being outside the purview of the arbitration and cannot be referred for arbitration. 9. It is not in dispute that Clauses 2 and 25 of the Agreement are pari-materia to the one''s before the Hon''ble Supreme Court in Vishwanath Sood vs. Union of India and another , (1989) AIR(Supreme Court) 952 and, therefore, it shall be apposite to refer to the observations of the Hon''ble Supreme Court with respect to the interpretation of these two Clauses wherein it was held that the compensation clause contains a complete machinery for determination of the compensation which can be claimed by the Government on the ground of delay on the part of the contractor in completing the contract as per the time schedule agreed to between the parties and, therefore, the matter is not referable. The decision of the Superintending Engineer is in the nature of a considered decision which he has to arrive at after considering the various mitigating circumstances that may be pleaded by the contractor or his plea that he is not liable to pay compensation at all under this clause. It was held as under: "9 We are therefore inclined to hold that the opening part of clause 25 clearly excludes matters like those mentioned in clause 2 in respect of which any dispute is left to be decided by a higher official of the Department. Our conclusion, therefore, is that the question of awarding compensation under clause 2 is outside the purview of the arbitrator and that the compensation, determined under clause 2 either by the Engineer-incharge or on further reference by the Superintending Engineer will not be capable of being called in question before the arbitrator." 10. Significantly, this in fact is the decree that has been passed by the learned trial Court after holding the orders dated 23.1.1999 and 16.4.1999 to be illegal, null and void and not binding upon the plaintiff. 11. Mr. Significantly, this in fact is the decree that has been passed by the learned trial Court after holding the orders dated 23.1.1999 and 16.4.1999 to be illegal, null and void and not binding upon the plaintiff. 11. Mr. B.M. Chauhan, learned counsel for the appellants/ defendants would then argue that the findings regarding the aforesaid orders dated 23.1.1999 and 16.4.1999, are perverse as the learned trial Court has failed to appreciate the fact that these were passed only after necessary permission had been obtained from the Estate Officer and thereafter an appropriate opportunity had been afforded to the respondent/ plaintiff. I am afraid that even this contention is equally without merit. 12. There is no dispute that as per the letter dated 3.11.1997 the work was to be completed within nine months and the completion date was 2.8.1998 and the amount was Rs.4, 24, 560/-. It is also not in dispute that it was the appellants/defendants who were to supply the copies of drawings, designs and specifications agreement free of costs which according to PW-6, Kulbhushan Sood, who is the General Power of Attorney of the plaintiff were not supplied to him. This witness further stated that he had started the work as per the agreement, but the XEN (Design) without assigning any reasons imposed penalty of Rs. 4,24, 560/- on him vide letter dated 23.1.1999, whereas only the Estate Officer was competent to impose the penalty which could not be of more than 10% of the tender amount of the total agreement period. The period of agreement had expired on 2.8.1998, whereas the penalty was imposed on 23.1.1999. According to clause 2, the contractor was to complete 1/8th part of the agreement in 1/4th time i.e. 2 months of the value of Rs.5, 24, 000/- which was completed by him. The department, in turn, was required to make the payment as per clause 7 of the agreement every month on regular basis, yet submitted his first bill in the last week of November, 1997 and 90% payment of which was made on 15.1.1998 and remaining 10% payment was made on 25.7.1998. The second bill was submitted by him in the last week of March, 1998 which was paid in May, 1998 and in this manner the Department had violated clause 7. The second bill was submitted by him in the last week of March, 1998 which was paid in May, 1998 and in this manner the Department had violated clause 7. The department was to supply cement and steel as per clause 10 of the agreement, but the steel of 25 and 28 MM was not supplied in time and, therefore, the columns of first storey could not be raised as per the agreement and consequently the work had to be stopped. Not only this, the defendants also did not supply the drawings and specifications and the same was supplied only on 20.4.1998.He was not paid the payment of 5th bill amounting to Rs.95, 557/- and was not refunded the security amount of Rs. 1,00, 000/-. On 7.4.1998 a meeting was held in the office of ViceChancellor regarding the payments, but the defendants expressed their inability to make the payment. 13. In his cross-examination PW-6 Kulbhushan Sood, stated that he is elder brother of the plaintiff, who in fact is executing the work on the spot and stated that he had started the work as per agreement, but the XEN without assigning any reason imposed penalty amounting to Rs. 4,24, 560/- on 23.1.1999, whereas the Estate Officer was competent to impose penalty, which otherwise could not be of more than 10% of the tender amount. 14. The defendants in rebuttal examined DW-1 Ashwani Chadha, Assistant Engineer, who in cross-examination denied that it was the Estate Officer , who was competent to impose the penalty under Clause 2 of the agreement, but nowhere this witness stated that prior to issuance of imposition of penalty a show cause notice was issued to the plaintiff. 15. The other witness examined by the defendants is R.S.Guleria, Junior Engineer, who appeared as DW-2, did not aver regarding the plaintiff having been issued a show cause notice prior to imposition of penalty. 16. Evidently, the plaintiff has produced on record the tender agreement Ex.PW-8/Q, the relevant portion whereof reads thus: "The time allowed for carrying out the work as entered in the tender strictly observed by the contractor and shall be deemed to be the essence of the contract on of the contractor and shall be reckoned from the fifteen day after the date on which commence the work is issued to the contractor. The work shall throughout the stipulated period the contractor shall be proceeded with all due diligence and the contractor shall pay as compensation amount equal to to one percent, or such smaller amount as the Estate Officer (whose decision writing shall be final) may decide on the amount of the tendered cost of the whole work as the tender, for very day that the work remains un-commenced or unfinished after the proper course. And further, to ensure good progress during the execution of the work, the contractor shall be in all cases in which the time allowed for any work exceeds one month (save for special jobs complete one eight of the whole of the work before one-forth of the whole time allowed under contract has elapsed three-eight of the work before one-half of such time has elapsed, and three-fourth of the work, before three-forth of such time as has elapsed. However, for special jobs if a time schedule has been submitted by the contractor and the same has been accepted by Engineer-in-Charge contractor shall comply with the said time schedule. In the event of the contractor falling to with this condition he shall be liable to pay as compensation on amount equal to one per cent smaller amount as the Estate Officer (whose decision in writing shall be final) may decide on the tendered cost of the whole work for every day that the due quantity of work remains incomplete. Provided always that the entire amount of compensation to be paid under the provisions shall not exceed ten per cent, on the tendered cost of the work as shown in the tender." 17. A bare perusal of the aforesaid clause would go to show that it is only the Estate Officer, who has vested with the authority to impose penalty. The definition of Estate Officer has not been given in clause 1 of the agreement, but as per letter Ex. PW-8/A, it was the Superintending Engineer, who was also the Estate Officer of H.P.K.V.V., whereas the order dated 23.1.1999 and 16.4.1999 have been issued by defendant No.2, i.e. Executive Engineer (D) , who was not competent to impose penalty of compensation as he did not fall within the definition of Estate Officer. 18. PW-8/A, it was the Superintending Engineer, who was also the Estate Officer of H.P.K.V.V., whereas the order dated 23.1.1999 and 16.4.1999 have been issued by defendant No.2, i.e. Executive Engineer (D) , who was not competent to impose penalty of compensation as he did not fall within the definition of Estate Officer. 18. Therefore, no infirmity or illegality can be found with the findings recorded by the learned trial Court when it proceeded to conclude and decree the suit filed by the plaintiffs by quashing the orders dated 23.1.1999 and 16.4.1999 to be illegal, null and void and not binding upon the plaintiff. 19. As a last ditch effort, Mr. B.M. Chauhan, learned counsel for the appellants/defendants would vehemently argue that an adverse inference ought to have been drawn against the plaintiff/respondent as he did not appear in the witness box and strong reliance is placed upon the judgment in Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others , (2005) AIR(Supreme Court) 439. 20. Obviously there cannot be any quarrel with the proposition laid down by the Hon''ble Supreme Court, but it has to be remembered that the principle laid down in the aforesaid decision would apply only in case where the defendants succeeds in proving that the facts of the case were such that were only in the exclusive knowledge of the party. 21. Under Order 3 Rule 1 and 2 CPC, power of attorney holder can appear, plead and act in any Court but the same cannot be extended to deposing in the witness box. This is not absolute and would only apply to the cases where a fact is confined to the exclusive and personal knowledge of a party, which is not the fact situation obtaining in the instant case. 22. Reference in this regard can conveniently be made to the judgment of the Hon''ble Supreme Court in Damodar Lal vs. Sohan Devi and others , (2016) 3 SCC 78 wherein it was observed as under: "11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the defendants/respondents to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the defendants/respondents to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes." 23. In view of the aforesaid discussion, I find no ground to interfere with the judgment and decree passed by the learned trial Court, rather I fail to appreciate as to why in the first place, the appellants have preferred the instant appeal as right to determine the compensation, if any, under Clauses 2 and 25 of the agreement is still with the appellants. Accordingly, there is no merit in this appeal and the same is dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.