The Ld. Arbitrator's jurisdiction, the applicability of Clause 16(2) of the Agreement, and the sufficiency of reasons provided in the award were the main legal points established in the judgment.

JUDGMENT

Krishna Rao, J. - This is an application under Section 34 of the Arbitration and Conciliation Act, 1996 challenging the Award passed by the Ld. Sole Arbitrator dt. 13th July, 2010. The respondent being the successful bidder entered into a Contract No. 205 dt. 14th December, 1995 for supply and delivery of stone Ballast and to loading into wagon of Nimdih Depot of Adra Division. As per contract, the stipulation date of completion was 12 months with effect from 28th November, 1995. The estimated cost of the said work was 53,25,000/- and the value of the contract on the basis of the rate agreed by the respondent was Rs. 56,22,750/-. The respondent had supplied ballast during the 1st quarter but the respondent could not supply 7500 cum of stone ballast within 2nd quarter i.e. in between 28th February, 1996 and 27th May, 1996 and only 6851.89 cum of stone ballast was supplied. The respondent had applied for extension of time for supply of balance 2nd quarter till 27th November, 1996 but the petitioners have not taken any decision and finding no other alternative the respondent had stopped the work from 28th November, 1996 and finally the petitioners have terminated the contract on 31st March, 1997.

2. As the petitioners have withheld the amount of Rs. 66,425/- and also instead of extending the time for supply of balance quantity of stone ballast have terminated the contract, the respondent has invoked the provision of appointment of Arbitrator. The petitioners have not appointed an arbitrator as per the request made by the respondent and accordingly the respondent had approached this Court for appointment of Arbitrator and an Arbitrator was appointed.

3. On 30th May, 2002, the Ld. Sole Arbitrator had published an award in favor of the respondent by rejecting the counter claim made by the petitioner. Being aggrieved with the Award dt. 30th May, 2002, the petitioners have preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 before this Court being AP No. 273 of 2002 and the said application was disposed of on 18th February, 2009 by passing the following order:

'Mr. Mukherjee pointed out that the respondent closed its evidence at the 26th sitting, held on 19th September, 2001. On that day, the sitting scheduled for 9th October, 2001 was cancelled by mutual consent. Next sitting were fixed on 8th October, 2001, 9th October 2001 and 11th October, 2001. However, at the 29th sitting on 11th October, 2001, the learned Arbitrator recorded as follows:

'Mr. Sanjeeb Kumar for the Respondent submits that due to an accident he could not be present at the last sitting for deposition and prays for an opportunity to be given to him for deposition. Hearing his submissions the Arbitrator views that Mr. Sanjeeb Kumar has no personal knowledge of the case, nor he was present at the site at the material time and whatever evidence he would be given would be on the basis of record and hearsay. So no useful purpose will be served by giving an opportunity to depose in the matter. The railways were given ample opportunity to call for witness. So his prayer is not acceptable. Whatever is admitted on record and admitted by both the parties the Arbitrator will take cognizance of such records.'

There appears to have been an explanation for the inability of the petitioner to appear on 8th October, 2001. Having regard to the enormity of the counter claim, opportunity ought to have been given to the witness. I am thus inclined to accept Mr. Mukherjee's submission that the learned arbitrator has pre-judged the admissibility of evidence, even before the evidence was tendered. In the process the learned Arbitrator denied the petitioner, equal opportunity to contest the claim of the petitioner as also to press its counter claim.

The entire award is thus set aside and the disputes are remitted back to the learned arbitrator for adjudication. The learned Arbitrator shall decide the disputes afresh, after giving the respondent an oppor