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1987 Supreme(Online)(Ker) 6

KERALA HIGH COURT
Dr. T. Kochu Thommen, *Balakrishnan, JJ.
State of Kerala v. Arya Refrigeration And Air Conditioning Co.
M. F. A. No. 515 of 1983



1The 1st respondent, Arya Refrigeration and Air Conditioning Company, New Delhi, entered into an agreement with the 2nd appellant, the Director of Fisheries, Kerala, on 18-1-1965 for the supply and erection of 100 ton ice cum cold storage plant at Willing ton Island. The agreed amount of the contract was Rs.9,40,000/-. The Ist respondent started the work and the appellants were making payments for the various items of work. There was some progress for the work. However, as time passed, disputes arose between the parties and the matter was referred to arbitration by virtue of Clause.15 of the agreement. There were two arbitrators and they passed an award on 2-11-1978. The 1st respondent put forward various claims and the Arbitrators awarded Rs.1,64,950/- for the materials supplied by them, and Rs.1,00,00/- towards their claims. Under Clause.3 of the award the Arbitrators granted the relief in the following terms:
"that for future delay for the next one year the Claimant will be paid 40 per cent more over the agreed amount of the contract less the amount of the work already done plus an amount of Rs.300/- per month towards overhead charges during the period the contract is in force."
The claimant later filed execution petition for the realisation of the amount due as per Clause.3 of the award. There were litigations between the parties and ultimately the amount was quantified at Rs. 5,05,500/-.
1A. As soon as the first award was passed the appellants thought it fit to cancel the contract and therefore the contract between the two parties was terminated with effect from 17-11-1978. The 1st respondent objected to the cancellation and raised various other claims. In view of the cancellation of the contract, the 1st respondent sought to refer all the matters in dispute to arbitration. The 1st respondent nominated their Arbitrator under S.9 of the Arbitration Act and served notice on the appellants. The appellants did not nominate any Arbitrator. The Arbitrator chosen by the 1st respondent went ahead with the arbitration proceedings. Notice was issued to the appellants. They did not participate in the arbitration proceedings. The Arbitrator ultimately passed an award or 17-5-1982. The Arbitrator awarded Rs.22,72,500/- to the 1st respondent. The operative portion of the award is as follows:-
 "I HEREBY AWARD AND DIRECT AS FOLLOWS:-
Point No. 1:- Whether the cancellation of the contract for supply of materials and installation of 100 ton Ice-cold-storage plant at Willington Island is legal and valid?
Finding:- I find that the cancellation is illegal and invalid.
Point No. 2:- Who is responsible for the delay In completing the balance work, whether the respondents or claimants?
Finding-- The respondents are responsible for the delay in completing the balance work.
Point No. 3:- What is the amount of damage awardable?
Point No. 4:- What is the amount of compensation awardable to the claimants for the delay in completing the work from 17-5-1977 till the date of claim?
Point No. 5:- What is the amount payable to the claimants as loss of profits?
Findings:- Those 3 points viz. 3, 4 & 5 can be considered together with reference to the statement of claims.
In the statement of claims, the claimant claims:
(a) Rs.22,72,500/- as "compensation for the delay at the rate allowed by the joint Arbitrators in the previous Award which has become final", I allow the claim and direct that the respondents should pay to the claimant Rs.22,72,500/- under this head.
(b) The claimant has claimed Rs.36,000/- as expenses for visit of executives etc. I disallow this claim.
(c) Claimant has claimed Rs.9,000/- as salaries of staff etc. This claim is rejected.
(d) The claimant has claimed Rs. 10,000/- as loss of profit for the balance work: This claim is rejected.
(e) Rs.30,000/- is claimed for unauthorised selling of materials. This claim is also disallowed
(f) Rs.2,000/- is claimed as Sundry expenses by the claimant. This claim is rejected.
Point No. 6- This point is more or less





































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