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2022 DIGILAW 64 (MP)

S. L. GOYAL v. STATE OF MADHYA PRADESH

2022-01-11

PURUSHAINDRA KUMAR KAURAV, SHEEL NAGU

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ORDER : – This revision under section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as Act of 1983) takes exception to award dated 29-11-2001, passed by Madhya Pradesh Arbitration Tribunal, Bhopal, in reference case No. 15/98, rejecting the claim of the applicant. 2. Brief facts for adjudication of the present revision are that the applicant was awarded contract for construction of medium bridge in km of 13/10 of Jhipra Chawalpani Road on 26-2-1992. The applicant claimed that on account of various reasons he suffered loss and, therefore, he preferred reference petition under section 7 of the Act of 1983 claiming a sum of Rs. 6,29,672/- against the respondents. 3. The respondents have denied the aforesaid claim and have submitted that incomplete work left out by the applicant was got completed by debitable Agency Vide Exhibit- D/20 and a sum of Rs. 3,52,452/- was paid to the debitable Agency, therefore, the respondents are entitled for adjustment of the said amount from the applicant. 4. The learned Arbitral Tribunal after recording the evidence, vide impugned award has found that the applicants are entitled for Rs. 85,849/- under different heads. However, it has been held that as per Clause 3(c) of the agreement, if any unexecuted work is left by contractor, the employer is entitled to get it completed by any other agency and the amount incurred in getting such work completed would be recovered/adjusted from the contractor. Therefore, the respondents were entitled for adjustment for the amount of the debitable charges of Rs. 3,52,452/- and hence, the claim of the petitioner was rejected. 5. We have heard the counsel appearing for the parties and perused the record. 6. Learned counsel for the applicant has placed reliance on the decision of the Full Bench of this Court in the matter of Ravikant Bansal, Engineers and Contractors vs. Madhya Pradesh Audyogik Vikas Nigam Gwalior, 2006(2) M.P.L.J. (F.B.) 299 and the decision in the matter of Dr. Surendranath Reddy vs. State of M. P., Civil Revision No. 1973/2000, order dated 21-9-2015. According to him the Arbitral Tribunal has erred in allowing the counter claim of the respondents. Unless the dispute is first referred to the final authority in terms of the works contract, the counter claim was not maintainable. Surendranath Reddy vs. State of M. P., Civil Revision No. 1973/2000, order dated 21-9-2015. According to him the Arbitral Tribunal has erred in allowing the counter claim of the respondents. Unless the dispute is first referred to the final authority in terms of the works contract, the counter claim was not maintainable. He states that the Tribunal should only entertain a counter claim preferred by the opposite party, when the same is first referred to the final authority for final decision under the terms of the contract. No other point is argued/pressed by the learned counsel for the applicant. 7. Learned counsel appearing for the State has supported the impugned award, and states that in view of the finding recorded in paragraph No. 20 of the impugned award to the effect that the applicant did not dispute the amount incurred in getting the work completed from debitable Agency, it cannot be said that the principles applicable to the counter claim needs to be followed. He further submits that the agreement in question was executed prior to coming into force of the substituted provision of section 7-B of the Act of 1983 and for this reason also the present revision deserves to be dismissed. He distinguishes the decision cited by the learned counsel appearing for the applicant on facts. He placed reliance on decisions in the matter of P. K. Pande vs. State of M. P., 2000(1) M.P.L.J. 367 , Narayan Prasad Lohia vs. Nikunj Kumar Lohia and others, (2002) 3 SCC 572 , Union of India vs. Susaka Private Limited and others, (2018) 2SCC 182 and ARCE Polymers Pvt. Ltd. vs. M/s Alphine Pharmaceuticals Pvt. Ltd. and ors., 2021 SCC Online 1169, Civil Appeal No. 7372/21 dated 3-12-2021. 8. The learned Arbitral Tribunal while passing an order of adjusting an amount incurred for getting the incomplete work completed by the debitable Agency has clearly recorded a finding in paragraph No. 20 that the applicants did not deny the fact of getting the work completed from the debitable Agency. For ready reference Paragraph No. 20 of the impugned award is being reproduce as under : – “Now the question for our consideration whether the petitioner can recover the above amount of Rs. 85,849/- from the respondents. The respondents have pleaded that the balance work got completed from the Debitable Agency (Ex.D-20). For ready reference Paragraph No. 20 of the impugned award is being reproduce as under : – “Now the question for our consideration whether the petitioner can recover the above amount of Rs. 85,849/- from the respondents. The respondents have pleaded that the balance work got completed from the Debitable Agency (Ex.D-20). The petitioner also had not denied this fact Clause 3 (C) of the agreement, provides that to measure up the work of the contractor and to take such part there of as shall be unexecuted out of his hands, and to give it to another contractor to complete in which case any expenses which may be incurred in excess of the sum which would have been paid to the original contractor, if the whole work had been executed by him (of the amount of which excess certificate in writing of the Divisional Officer shall be final and conclusive) shall be borne and paid by the original contractor and may be deducted from any due to him by Government under the contract or otherwise or from his security deposit or the proceeds of sale thereof or a sufficient part thereof. This Clause made it clear that if the original contractor left the work incomplete and the respondents have got the balance work done by another agency, the excess amount incurred by the Department for completing the balance work from the debitable Agency can be recovered/adjusted from the petitioner’s final bill. Clause 3(c) of the agreement Art ‘A’ authorises the respondents to recover the dues against the contractor, occurred under the debitable charges. In such a situation the amount of expenses incurred, in doing the balance work done by the debitable Agency, can be adjusted and in such a situation the petitioner is not entitled to recover any amount from the respondents.” (emphasis supplied) From perusal of Para 20 of the impugned award, it is clear that the applicant did not dispute the payment of Rs. 3,52,452/- vide Ex. D5 20 and in absence of any denial to the said fact it cannot be said that there was any dispute with respect to the aforesaid fact. It is true that the counter claim is nothing but a dispute referred by the opposite party under sub-section (1) of section 7 of the Adhiniyam to the Tribunal. However, in the present case, the claim of the Adjustment of Rs. It is true that the counter claim is nothing but a dispute referred by the opposite party under sub-section (1) of section 7 of the Adhiniyam to the Tribunal. However, in the present case, the claim of the Adjustment of Rs. 3,52,452/- cannot be treated as counter claim for the reason that the same has not been disputed by the applicant. The Tribunal constituted under section 3 of the Act of 1983 is under an obligation to resolve all “disputes or differences” pertaining to works contract and therefore, when there is no “dispute or difference” with respect to payment made to the debitable Agency, then the plea raised first time before this Court in revision is not acceptable. 9. The facts of the case also show that the tender was submitted with respect to the work in question on 26-2-1992, which was accepted by letter dated 10-4-1992. Thereafter, the agreement was executed and the work order was issued by the Executive Engineer on 20-4-1992 for completing the work within seven months. The claim petition under section 7 of the Act of 1983 was preferred on 2-3-1992. The agreement in question is not produced by either of the parties and the same is not on record. Section 7-B of the Act of 1983 has been substituted by Madhya Pradesh Act No. 36 of 1995 w.e.f 15-12-1995 which requires that the dispute is to be first referred for decision of the final authority under the “terms of the works contract”. The decision in the case of Ravikant Bansal is in the context of the terms and conditions of the agreement of that case where, the final authority was prescribed, unless the applicant satisfies that in the present case also agreement has a provision of final authority, the plea raised by the applicant cannot be accepted. 10. If the plea is available, whether of facts or law, it has to be raised by the parties at appropriate stage in accordance with law. If not raised or/ and given-up with consent, the parties would be precluded from raising such plea at later stage of the proceedings on the principle of waiver. If permitted to be raised, it causes prejudice to other party. See : Union of India vs. Susaka Private Limited and others. 11. If not raised or/ and given-up with consent, the parties would be precluded from raising such plea at later stage of the proceedings on the principle of waiver. If permitted to be raised, it causes prejudice to other party. See : Union of India vs. Susaka Private Limited and others. 11. Besides the aforesaid discussion, it may also be noted that this Court’s jurisdiction under section 19 of the Act of 1983 is limited to the grounds mentioned in section 19(2) of the said Act. Having perused the award, we do not find that the award falls under any of the categories of section 19(2) of the 1983 Act warranting out interference. 12. In view of the aforesaid, the present revision fails and is hereby dismissed. No order as to costs.