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2016 Supreme(Gau) 602
GAUHATI HIGH COURT
Michael Zothankhuma, J.
Union of India & Ors. - Appellant
Versus
D.D.Sharma - Respondent
R.F.A. No. 18 of 2013
Decided On : 31-03-2016
For the Respondent:Mr. Souman Choudhary, Mr. Mahabir Prasad Baid, Mr. Rajesh Dhar and Mr. Palu Sarkar, Advocates.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 34 - No one has appeared for the respondent for the whole of the year - Vakalatnama has been submitted on behalf of the respondent in favour - If the respondent did not appear or was not represented on the next date, the matter would be heard ex-party against the respondent - None appears for the respondent even today and as such, the matter is being heard in the absence of the respondent - Learned CGC submits that the appellants and the respondent had entered into a contract with the respondent for design and construction - Held, Judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially - A quasi-judicial authority must record reasons in support of its conclusions - Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well - In the present case, there being no reasons recorded by the Addl. District Judge, in Arbitration Case as to whether the requirement was present/absent in the appellants application, the dismissal of the appellants application by a Cryptic Order, which is without reasons is liable to be set aside - Accordingly, the Order passed by Court of Addl. District Judge, is hereby set aside - Matter is remanded back to the Addl. District Judge, for a fresh consideration - Court shall hear the parties afresh and pass a reasoned order as held by the Apex Court in Kranti Associated Private Limited and another - Appeal disposed of.
Zairemsangpuii, learned CGC is present.
2. A perusal of the Order-sheet shows that no one has appeared for the respondent for the whole of the year 2015 even though a vakalatnama has been submitted on behalf of the respondent in favour of the following advocates, Mr. Souman Choudhary, Mr. Mahabir Prasad Baid, Mr. Rajesh Dhar and Mr. Palu Sarkar. This Court in its Order dated 7.3.2016 had held that if the respondent did not appear or was not represented on the next date, the matter would be heard ex-parte against the respondent. None appears for the respondent even today and as such, the matter is being heard in the absence of the respondent.
3. The learned CGC submits that the appellants and the respondent had entered into a contract with the respondent for design and construction of 55 M Span Pm. Steel Bridge (Through Type) with RCC Decking over Surtarakhal at KM 13.27 on Silchar - Badarpur Road and this contract bore CA No. CE(P) Pushpak-01 of 2000-2001. Work Order No. 01 dated 20 Apr 2000 was placed on the contractor with date of completion as 19 April 2002. The site was handed over to the contractor on 20 April 2000 and the work of the said bridge was completed on 31 August 2002.
4. In the meantime, on 20.2.2003 some distresses were found in the newly constructed bridge and a joint inspection by both the parties was carried out and the contractor thereafter submitted their rectification/rehabilitation scheme vide letter dated 20.3.2003 which was approved by the department with the condition that the rectification/rehabilitation should be executed without any extra cost to the department as per Clause 46 of the General Conditions of Contract (GCC) and to extend the defect liability period for one year from the handing over of the rehabilitated bridge vide letter dated 31.3.2003 and the CA was also amended accordingly.
5. The rectification/rehabilitation work was completed on 25.5.2003 but the contractor refused to carry out the instruction of load testing on the rectified bridge and the load testing was dispensed with.
6. However, another distress was observed and accordingly a second rectification/rehabilitation was called for and the contractor again submitted the second rectification/rehabilitation scheme which was again approved with the condition that the work should be executed at no extra cost to the department and within the lump sum agreed amount already agreed.
7. The department returned the final bill submitted by the contractor on his own request and they re-submitted an amended final bill vide letter dated 24.6.2005 and included some additional claims for the extra work done but the Department refused to pay the extra claims as per the terms and conditions of the amended CA and requested the contractor to amend the bill. The contractor re-submitted another amended bill but still included claims on the extra works of rectification done. The department paid the final bill minus the extra claims. The contractor referred the matter to arbitration.
8. The sole arbitrator disposed of the arbitration proceedings in CA No. CE(P) PSK-01 of 2000-2001 in favour of the respondent vide Arbitration Award dated 10.12.2010 and amendment dated 5.1.2011.
9. The appellant, being aggrieved by the decision of the sole arbitrator preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside Award of the arbitrator. The same was registered as Arbitration Case No. 1 of 2011. Arbitration Case No. 1 of 2011 was disposed of by the Court of the Additional District Judge, Aizawl vide Order dated 11.2.2013, which is as follows :-
"This application of filed under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the Arbitration Award dated 10.12.2010 and amendment dated 5.1.2011 passed by the ld Sole Arbitrator, Shri S.S. Porwal, CE, HQ Project Udayak, C/O 99 APO in Arbitration Proceedings pertaining to the dispute in CA NO. CE (P) Pushpak - 01 of 2001 betw
