The main legal point established in the judgment is the importance of demonstrating intention to prosecute an appeal and the interpretation of relevant legal provisions in award challenges.

JUDGMENT

1. Mr. Das, learned advocate, Additional Standing Counsel appears on behalf of appellant. He submits, the award was made under provisions in Arbitration Act, 1940. State had challenged the award under section 33, contending that there was misconduct, as defined in section 30. The Court below erred in not appreciating contentions made before it and hence, the appeal.

2. He submits, the only point for adjudication of the appeal is that the tribunal applied 1972 schedule of rates in respect of 2nd Running Account (RA) to final bills. He submits, the contract was made on 1st May, 1972. Pursuant to respondent having submitted tender on 21st July, 1971 per the 1964 schedule of rates. Work order was issued on 26th April, 1972. The work was abandoned and the contract closed on 6th July, 1974. Respondent raised and obtained payments till 9th RA bill as on 12th July, 1974. In the circumstances, respondent having had raised purported claim based on 1972 schedule of rates by letter dated 24th May, 1974 (marked exhibit 5 in the reference), could not have been favoured with award on basis thereof.

3. He relies on order dated 1st December, 2021 of the Supreme Court in Civil Appeal no.7738 of 2011 (Pranab Jyoti Das vs. The General Manager and others), wherefrom paragraphs 4 and 5 are extracted and reproduced below.

'4. The arguments of the appellant is that Ex.P-12, schedule of items of work and quantities were revised as 450% above North Signature Not Verified Frontier Schedule of rates on 5th June, 1992. Digitally signed by DEEPAK SINGH Therefore, the appellant Date: 2021.12.04 13:00:16 IST Reason:is entitled to 450% increase as on 5th June, 1992 above the schedule of rates, over and above the rate quoted by the appellant.

5. We do not find any merit in the argument raised. Ex.P-12 is an internal calculation sheet of the department which was never circulated or became part of the schedule of rates. Any noting in the file is not an order on the basis of which the appellant could lay a claim for higher rates. The High Court has declined the claim of the higher rates on good and sufficient grounds.'

He relies on another judgment of the Supreme Court in South East Asia Marine Engineering and Constructions Limited vs. Oil India Limited, reported in (2020) 5 SCC 164, paragraph 30, reproduced below.

'30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion.'

He submits, said award be set aside in appeal.

4. Mr. Mishra, learned senior advocate appears on behalf of respondent contractor. He submits, aggregate sum awarded was Rs.4,18,566/- on rejecting most of the claims. Of this, claim, on account of escalation by reliance on 1972 schedule of rates, was awarded at Rs.94,766/-. The award was duly made on reasons given in paragraph 15 in the award. He submits, raising RA bills and accepting payment in the face of the employer itself having upwardly revised the schedule of rates made applicable almost simultaneously with commencement of work under the contract, cannot prevent his client from having claimed. The employer did not automatically or mindlessly make the upward revision. It was based on statutory increase in respect of labour costs and also factoring in increase in cost of materials. The employer, at the time of issuance of work order and thereafter was aware that it itself had increased the rates. It w