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High Court Of Calcutta
A. N. SEN, S. C. GHOSH
UNION OF INDIA - Appellant
Versus
D.BOSE - Respondent
A. F. O. O. 48 Of 1979 And Award No. 124 Of 1978
Decided On : 02/15/1980
ARBITRATION - AWARD - VALIDITY - NO ERROR APPARENT ON THE FACE OF THE AWARD - NO FAILURE TO APPLY CONTRACT TERMS - NO ESCALATION BEYOND JURISDICTION - NO DEPARTURE FROM SCOPE OF REFERENCE - NO 'NO CLAIM CERTIFICATE' DEBARRING CLAIM - NO ACCORD AND SATISFACTION - AWARD UPHELD.
Fact of the Case:
The appellant, Union of India, entered into a contract with the respondent for the construction of single men accommodation, messes, and external services at Binaguri, West Bengal. Disputes arose between the parties regarding the quantum of the respondent's claim, which were referred to arbitration as per the arbitration clause in the contract. The arbitrator made an award in favor of the respondent, which the appellant challenged in court under Sections 16, 30, and 33 of the Arbitration Act, 1940, on various grounds, including the absence of findings, the effect of a 'no claim certificate' submitted by the respondent, and alleged errors in applying the contract terms.
Finding of the Court:
The court found that the arbitrator had made findings on all the disputes referred to him, although reasons for the findings were not provided. The 'no claim certificate' was submitted without prejudice to the pending arbitration and was a dispute within the arbitration clause. The claim was not discharged by accord and satisfaction, as the arbitrator had decided otherwise. There was evidence before the arbitrator to support the award, even though it was not strictly proved in accordance with the Evidence Act. The arbitrator did not err in applying the contract terms or in granting escalation, and the award was within the scope of the reference.
Issues: 1. Whether the arbitrator's award was valid despite the absence of findings and reasons. 2. Whether the submission of a 'no claim certificate' by the respondent barred further claims. 3. Whether the claim was discharged by accord and satisfaction. 4. Whether there was sufficient evidence to support the award. 5. Whether the arbitrator erred in applying the contract terms or in granting escalation. 6. Whether the award was beyond the scope of the reference.
Ratio Decidendi: 1. The arbitrator's findings, though lacking reasons, were sufficient to satisfy the contract's requirement. 2. The 'no claim certificate' was submitted without prejudice to the pending arbitration and was a dispute within the arbitration clause. 3. The claim was not discharged by accord and satisfaction, as the arbitrator had decided otherwise. 4. There was evidence before the arbitrator to support the award, even though it was not strictly proved in accordance with the Evidence Act. 5. The arbitrator did not err in applying the contract terms or in granting escalation. 6. The award was within the scope of the reference.
Final Decision: The court dismissed the appellant's appeal, upholding the arbitrator's award and finding no merit in the appellant's arguments.
( 1 ) THIS appeal is directed against the judgment and order dated January 19, 1979 passed by T. K. Busu J. By and under the said judgment and order the learned trial Judge dismissed the application made by the appellant under Ss. 16, 30 and 33 of the Indian Arbitration Act, 1940 inter alia for selling aside of an award dated May I, 1978 made by the arbitrator Col. Gurcharan Singh.
( 2 ) BY and under a contract dated 28th September 1972 executed within the jurisdiction of this Court, by and between the appellant and the respondent, the respondent agreed to construct for the appellant single man accommodation and messes and certain external services, phase IA (Left Zone) at Binaguri, District Jalpaiguri. The agreed value of the said constructions agreed to be constructed by the respondent was Rupees 1,06,77,167. 65 paise. The said contract contained inter alia the following terms:--"condition No. 9 -- Suspension of work--"the contractor shall suspend execution of the works or any part or parts thereof whenever called upon in writing by the Garrison , Engineer to do so, and shall not resume work thereon until so directed in writing by the Garrison Engineer. The contractor will be allowed by the GE an extension of time (not less than the period of suspension) for completion of the item or group of items of work for which a separate period of completion is given in the contract and of which the suspended work forms part but no other claims in this respect for compensation or otherwise, howsoever, shall be admitted. ""condition No, 11 -- Time, Delay and Extension-- (A) Time is of the essence of the contract and is specified in the contract documents or in each individual works order. As soon as possible after the contract is let or any substantial works order is placed and before work under it is begun, the GE and the contractor shall agree upon a time and progress chart. The chart shall be prepared in direct relation to the time stated in the contract documents or the Works Order for completion of the individual items thereof and/or the Contract or works order as a whole. It shall indicate the forecast of the dates for commencement and completion of the various trade processes or sections of the work, and shall be amended as may be required by agreement between the GE and the contractor within the limitation of time imposed in the contract documents or Works Order. If the works be delayed:-- (i) by force majcure, or (ii) by reason of abnormally bad weather, or (iii) by reason of serious loss or damage by fire, or (iv) by reason of civil commotion, local combination of workmen, strike or lockout affecting any of the trade employed on the work, or (v) by reason of delay on the part of nominated sub-contractor, or nominated suppliers which the contractor has in the opinion of GE, taken all practicable steps to avoid, or reduce, or (vi) by reason of delay on the part of contractors or tradesmen engaged by Government in executing works not forming part of the contract, or (vii) by reason of any other cause, which in the absolute discretion of the Accepting Officer is beyond contractor's control;then in any such case the officer hereinafter mentioned may make fair and reasonable extension in the completion dates of individual items or groups of items of work for which separate periods of completion are mentioned in the contract documents or works order, as applicable. Upon the happening of any such event causing delay, the contractor shall immediately give notice thereof in writing to G. E. but shall nevertheless use constantly his best endeavour to prevent or make good the delay and shall do all that may reasonably be required to the satisfaction of the G. E to proceed with the Works, extension of time shall be granted as under:-- (a) by G. E. for all Term Contracts; (b) by Accepting Officer of the contract for all other contracts. Extension of time, as granted above, shall be communicated to the contractor by G. E. i
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