Back
2016 Supreme(Ori) 1024
IN THE HIGH COURT OF ORISSA: CUTTACK
S.C. PARIJA, J.
ARBA No. 38 OF 2005
(Date of Judgment : 16.03.2016)
In the matter of an application under Section 37 (b) of the Arbitration and Conciliation Act, 1996.
State of Orissa, through the
Executive Engineer,
Bhubaneswar (R&B)
Division No. III,
Bhubaneswar … Appellant
Versus
Bhagyadhar Dash … Respondent
For Appellant :Addl. Govt. Advocate
For Respondent: M/s. N.K. Jujharsingh, M.M. Satapathy, A.K.Bisoi and A.K. Mishra-2.
.
Headnote:1. ARBITRATION AND CONCILIATION ACT, 1996 - Sec. 34 - An award can be set aside only if the same comes within the ambit of Sec. 34 (2) of the Act - Court while considering the question whether an award passed by the Arbitrator should be set aside or not, does not examine the question as an Appellate Court - While exercising the said power, the Court cannot reappreciate the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made.
Keeping in view the legal position regarding the scope of interference with an award of the Arbitrator, it is seen that in the present case, no material has been produced before this Court and no ground has been made out to show as to how the award is opposed to public or is patently illegal, so as to come within the ambit of Section 34(2) of the Act. The award reveals that the learned Arbitrator has recorded elaborate reasons in support of each of its findings, which are based on materials available on record. Moreover, it is not a case where the award is based on no evidence and therefore, the sufficiency of the evidence to accept a claim being within the exclusive jurisdiction of the Arbitrator to decide, no interference is warranted with regard to the merits of the award.
2. ARBITRATION AND CONCILIATION ACT, 1996 - An error of law on the face of the award means that you can find in the award some legal proposition which is the basis of the award and which you can then say is erroneous - Court has no jurisdiction to investigate into the merits of the case and to examine the documentary and oral evidence on the record for the purpose of finding out, whether or not the Arbitrator has committed an error of law - Further stated.
JUDGMENT
S.C.PARIJA, J. - This appeal by the State is directed against the judgment dated 04.12.2004, passed by the learned District Judge, Khurda at Bhubabeswar, in Arb. Misc. Case No. 139 of 2001, dismissing the application of the State-appellant filed under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the award passed by the learned Arbitrator.
2.The brief facts of the case is that the State –appellant had floated a tender for the work “construction of Compound Wall and Internal Roads for the Staff Quarters of Director of Technical Education and Training, Orissa at Chandrasekharpur, Bhubaneswar”. The estimated cost of the work was Rs. 13,20,000/- and the respondent-contractor submitted his tender for the said work at the tender value of Rs. 17,50,977/-, which was accepted. Thereafter the respondent-contractor signed the F2 agreement on 21.12.1996 and was issued with the work order. As per the agreement, the respondent-Contractor was required to complete the work within six months from the date of signing of the agreement and as requested by the Chief Engineer, the respondent-Contractor was to complete the work by 31.3.1997. The respondent-Contractor collected materials and completed excavation of foundation trench for laying concrete in foundation for construction of compound wall and had cleared the bushes from the work site and had leveled the ground for construction of internal roads. When the contract work was in progress, on 09.1.1997 another Special Class Contractor came to the site and disturbed the progress of the work. Though the respondent-Contractor intimated the same to the appellant and others on 13.1.1997, they remained silent. On 26.1.1997, one Rohit Kumar Das, on the strength of work order from Orissa Industrial Infrastructure Development Corporation, began laying concrete on the foundation trench which was excavated by the respondent-Contractor. On 27.1.1997, the respondent-Contractor requested the appellant to restrain Rohit Kumar Das from laying foundation but to no effect. Thereafter the respondent-Contractor issued a letter to the Superintending Engineer, Central Circle (R & B), Bhubaneswar, requesting him to enter into reference as per Clause 11 of the F2 agreement, to adjudicate the dispute. As no action was taken by the concerned Superintending Engineer, the respondent-Contractor approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996, and this Court was pleased to appoint Shri Justice S.C. Mohapatra (Retd.) as the sole Arbitrator in MJC No. 361 of 1997.
3.The respondent-Contractor filed his claim statement before the learned Arbitrator and the appellant on receipt of notice, appeared before the learned Arbitrator and filed his statement of defence/objection, disputing all the claims raised by the respondent-Contractor. The appellant also pleaded before the learned Arbitrator that there was no arbitration clause in the agreement and therefore, learned Arbitrator has no jurisdiction to entertain the claim.
4.On the pleadings of the parties, learned Arbitrator framed the following issues:
“(a) Whether there is a valid contract binding on parties.
(b) Whether respondent has committed breach of contract.
(c) Whether claimant has executed any work.
(d) Whether claimant has sustained loss in procurement of materials labour and maintaining establishment.
(e) Whether claimant is entitled to all or any of the claim items in the claim statement.
(f) whether arbitrator has jurisdiction to entertain the claims.
(g) To what relief the claimant is entitled to.”
5.Considering the materials available on record, both oral and documentary, learned Arbitrator proceeded to pass an award for Rs. 5,87,317/- under different heads in favour of the respondent Contractor, which are as follows:
“ (a)
Compensation towards payment of Advance to supply m
