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2007 Supreme(UK) 440
2008 UAD 501
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice P.C. Verma and Hon’ble Mr. Justice B.C. Kandpal
A.O. No. 257 of 2003
STATE OF U.P. – Appellant
Versus
M/S HARISH CHANDRA & COMPANY – Respondent
Decided on : 14.08.2007
For the Appellant : Smt. Beena Pandey, Learned Standing Counsel
For the Respondent: Mr. Kailash Chandra Joshi, Learned Counsel
Headnote:Arbitration Act, 1940, Secs. 30, 33 — Award passed by Arbitrator — Legality of — Arbitrator found to have committed a manifest error apparent on the face of the award by travelling beyond the specific terms and conditions of the contract agreement — Arbitrator thereby having misconducted himself as also the arbitration proceedings — Civil Judge also having fallen in error by rejecting objections against the award and having made the award rule of the court — Award as well as the order and judgment of the court making such award as rule of the court being liable to be set aside — Quashed. (Paras 22, 23, 24)
vkfcZVªs'ku ,DV] 1940] /kkjk;sa&30] 33 & vkfcZVªsVj }kjk ikfjrksf"kd dk fu.kZ;& dh oS/krk & ;g ik;k x;k fd vkfcZVªsVj }kjk vuqca/k dh fof'k"V 'krks± ds ijs tkdj izR;{k Hkwy dh xbZ & bl izdkj vkfcZVªsVj }kjk Lo;a feF;k vkpj.k fd;k x;k & flfoy tt }kjk Hkh =qfV dh xbZ fd mlds ikfjrksf"kd ds fo#) vk{ksiksa dks vLohdkj fd;k rFkk ikfjrksf"kd dks vnkyr dk fu;e cuk fn;k & ikfjrksf"kd rFkk bldks vnkyr dk fu;e cukus okyk vkns'k rFkk fu.kZ; lekIr fd;s tkus ;ksX; & gksus ds dkj.k & lekIr dj fn;k x;kA ¼izLrj 22] 23] 24½
Coram : Hon'ble P.C. Verma, J.
Hon'ble B.C. Kandpal, J.
This Appeal, U/S 39(1) of the Arbitration Act, against the judgment and order dated 21.12.1987, passed by Civil Judge, Dehradun, in Misc. Case no. 103 of 1987 arising out of suit No. 397 of 1987, whereby the objections of the State of U.P. filed U/Ss 30 and 33 of the Arbitration Act, against the award dated 11.7.1987, were rejected and the award was made rule of the Court.
2. Brief facts of the case are that Sri S.P. Bhargava, the sole Arbitrator submitted his award dated 11.7.1987, in the dispute arose between the parties with respect to agreement No. 5/SE/79-80 for construction of Khara Power Channel from Km. 7.3 to 8.00.
3. The State of U.P. filed objection against the award before the Civil Judge. It was alleged that the Arbitrator misconducted the proceedings of the arbitration and the award is liable to be quashed. The main contention was that the Contractor was to complete the work by 30.11.1981, but he failed to comply with the condition of the contract. He completed 95% of the work till March, 1984 and thereafter he did not do the remaining work. According to the State of U.P. the contractor demanded additional charges on account of high costs of the construction work. It was also alleged that the contract covered all types of strata, sand, clay, single boulders, bajri and rock etc. The contention of the contractor that hard rocks is not covered under the contract, is not correct and he is not entitled to any additional charges for excavation of hard rocks. It was also alleged that claim No. 1 and claim No. 3 are identical in nature but the Arbitrator has given contradictory findings on these claims. The excavation in all type of strata mixed with sand, shingle, boulder, clay, shale, conglomerate and all types of rocks etc. has been described in Schedule 'C' and the rate was agreed at Rs. 14.35 per cum but the Arbitrator awarded the rate of excavation at Rs. 40/- per cum which is totally against the agreement. The award under claim No. 4 has been decreed against the terms of clause 7.09 of the agreement. It was also alleged that the interest awarded by the Arbitrator is against the provisions of condition No. 1.09 of the agreement.
4. The respondent/contractor filed written statement before the learned Civil Judge, alleging therein that the delay in completing the work was due to the fault of the Department as much as site and the map was not delivered to the respondent in time. It was also alleged that the excavation of all types of strata including hard rocks was not included in the terms of the contract. During excavation pure hard rock was found at the site. According to him he employed machines and experts for the purpose. Claim No. 1 relates to excavation of pure hard rock 1.5 lacs cum while claim No. 3 relates to amount payable on account of change in the character in strata of 8.5 lacks cum of excavation done due to increase in the presence of hard rock provided in the departmental analysis to 25%, therefore both were separate claims. The Arbitrator had considered clause 7.06 and 7.07 while giving his award and the same cannot be challenged at this stage. According to him rate of Rs. 14.35 per cum was agreed only in respect of excavation in mixed type of strata and not for excavation of pure hard rock. The Arbitrator has not misconducted the arbitration proceedings in awarding the rate of pure hard rock @ Rs. 40.00 per cum.
5. The learned Civil Judge framed following issues in the case :
1. Whether the award is liable to be set aside as alleged in the petition?
2. Whether the court has no jurisdiction to investigate into the merits of the claim and the findings of the arbitrator?
3. What relief if any the petitioner is entitled?
6. The learned Civil Judge rejected the objections filed on behalf of the State of U.P. and made the impugned award as rule of the court.
7. Feeling aggrieved, the State of U.P. through Superintending Engineer, Irrigation
