AVADH BEHARI ROHATGI

( 1 ) THE petitioner M/s. Mehta Teja Singh and Co. are a firm of contractors (contractor ). The respondent. Union of India invited them to accept the work of construction of irrigation channels for equine breeding studs at Hissar. One of the items of this work was this :

"rough excavation in any soil (ordinary or hard), getting out and removal of spoil to a distance not exceeding 440 yardsll as specified".

( 2 ) THE contractor executed the work. Payments were made to him from time to time. At the end of the work, in the final bill it was found that he was entitled to a balance sum of Rs. 12,782. 09.

( 3 ) AT that stage the Union lodged a claim against the contractor. The claim was that as the contractor had been overpaid he should refund to them a sum of Rs. 50,478. 15. The contractor denied the claim. The matter went to the arbitrator.

( 4 ) LT. Col. M. K. Bakshi, Commander Works Engineer was appointed as the arbitrator. He made the award on 1st June, 1973. On the claim of the Union for refund his award was in these terms :

" (B) Claimant s claim No. 2 of Rs. 50,478. 15 against recoveries for removal of spoil to a distance less than specified. The claimant shall pay to the respondent a net sum of Rs. 14,674. 00 only towards recovery. "

( 5 ) THE Union having succeeded in their claim before the arbitrator refused to release the security of Rs. 50,000 which had been deposited by the contractor with them at the commencement of the work. The contractor, therefore, in order to get the security released paid this amount of Rs. 14,674 to the Union under protest reserving his right to challenge the award in Court. It is this part of the award that is now being challenged before me by a petition under Sections 30 and 33 of the Arbitration Act.

( 6 ) COUNSEL for the contractor has not challenged other parts of the award wherein the contractors claims were rejected. He has confined his attack only to this part of the claim of the Union which was found by the arbitrator against the contractor.

( 7 ) ON the pleadings of the parties the following issues were framed :

1. Whether the petitioner has acquiesced in the award and is estopped from challenging the same on account of the fact that realisations have been permitted to be made in accordance with the award ? OPD.

2. Is the award of the arbitrator not open to challenge because it is a non-speaking award ?

3. Is the award given by the arbitrator vitiated because of misconduct in the proceedings particularly on account of he failure to give a proper, hearing, to make note of the proceedings, to consider the submissions and putting the onus on the plaintiff-petitioner as set out in the objection petition ?

4. IS the award of the arbitrator also liable to be set aside particularly because the arbitrator did not call for the evidence of the realisations made by the defendant to the extent of Rs. 50,478. 15 and did not even call for the technical examiner s report on the basis of which this recovery was made ?before me the contractor has pressed only issue No. 4. On behalf of the Union only issue No, 2 was argued.

( 8 ) WHEN the matter was before the arbitrator, the contractor submitted his claims. In their counter-claims, the Union made the following claim on account of overpayment. It was said that after the execution of the work the technical examiner had made a report in which he had pointed out that overpayment had been made to the contractor. On the basis of this report, the Union formulatedb its claim before the arbitrator in these words:

"details of recoveries on account of post Technical Examination of work. SSR rate for si. item 4 of Sch a in anv soil with 440 yds lead. S. I. 78 0. 98 AV 0. 71 1082. 55 1. 25 or si. item 4 of Sch a in anv soil with 50 vds lead. SI 78 0. 98 AV 106 1. 20 2. 62/cm 2. 18 20" 0. 44 2. 62/cm When SSR rate is 4. 24/cm When SSR rate is 2. 62/cm Contractor rate is Rs. 4. 50. /cm Contractor rate is Rs. 4. 50 x 2. 62 = Rs. 2. 7s/c. M. Excess

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