Award by the arbitrator set aside for travelling beyond the terms of contract.

P. Shanmugam, J.

1. Both the above appeals arise out of an Arbitration Award and judgments seeking for a direction to file the original award and pass the decree in terms thereof (O.P.No.1 of 1992) and an order to set aside the order of award dated 12.3.1992 (O.P.No.2 of 1992) under Sections 17 and 14(2) and under Section 30 of the Arbitration Act, 1940 (hereinafter referred to as the Act) respectively. The Subordinate Judge directed the Arbitrator to file the original award and passed a decree in terms of the said award. He has also, in O.P.No.2 of 1998, dismissed the application under Section 30 to set aside the award. The State of Tamilnadu, aggrieved by the allowing of the application under Section 17 and 14 (2) of the Act and dismissing the application under Section 30 of the Act, filed the above two appeals.

2. The facts of the case are as follows:

The first respondent is a Contractor and a successful tenderer for undertaking the work of formation of Pugalur Byepass Road. An agreement dated 8.2.1988 was entered into. The agreement, inter alia, provided that the work must be executed within a period of 18 months from the date of handing over of the site. The site was handed over on 3.6.1988. After completion of the work, a claim was made on 7.6.1990 before the Superintending Engineer, National Highways for an additional sum of Rs.28,98,213.70 as against the original award amount of Rs.59,79,909. The Arbitrator, by his Award dated 12.3.1992, entertained the various claims of the first respondent and an award of Rs.27,95,215 was ordered in favour of the first respondent. The appellant herein filed O.P.No.2/92 to set aside the award of the second respondent and O.P.No.1/92 was filed by the first respondent herein to pass a decree in terms of the award. The learned Judge allowed the application of the respondent and dismissed the petition of the appellant. The appeal is against these orders.

3. There were five claims in reference to this contract. Of these, claim No.1 relates to extra rate for the increase in the length of carting of earth (gravel). No serious arguments were raised or submitted in reference to claim Nos.2 to 5. Since claim No.1 is of substantial amount to the tune of Rs.22,55,575.70, the appellant resisted the claim and has filed the above appeals. Therefore, the main controversy is in reference to the eligibility of the first respondent to seek for an additional claim for the alleged expenses incurred by him towards carting gravel. The case of the appellant-Government is that it is for the first respondent to locate the source of the gravel and that they are not bound to provide extra cost incurred for carting the gravel. Whereas, the case of the first respondent is that it is the duty of the Government to provide the source of the gravel and since it was found that the source originally located was impossible of being quarried and therefore, he had to go to a different source, which is away from the place of work and hence, he had to make good the extra expenses incurred by him.

4. Some of the clauses of the tender notice relating to the work are relevant for the purpose of our case. Clauses 18,20 and 25, which are relevant, are given below:

"18. Every tenderer is expected before quoting the rate to inspect the site of the proposed work. He should also inspect the quarries and other sources of materials and satisfy himself about the quality and availability of materials. The name of quarries, kilns, etc., where from certain materials are to be obtained will be given in the Schedule 'C samples of materials kept in the office of the Divisional Engineer (NH) No.I Division, Madurai shall be inspected by the tenderer before tendering for the work. The materials supplied should be as per the above samples and conforming to the SRBW and MDSS for items not covered by SSRB."

The tenderers shall examine in their own interest the drawings, condition of contract and specification of work. They shall also