JUDGMENT AND ORDER (ORAL)

Heard Ms. A. Gayan, the learned counsel for the appellant and Mr. R. Hussain, the learned counsel appearing on behalf of the respondents.

2. This is an application under Section 37 (1) (b) of the Arbitration and Conciliation Act, 1996 (for short, the Act of 1996) challenging the judgment and order dated 06.09.2011 passed by the learned District Judge, Kamrup, Guwahati in Misc. (Arb.) Case No.577/2009 thereby refusing to set aside and quash the arbitral award under Section 34 of the Act of 1996.

3. The brief facts of the instant case are that the appellant herein was allotted a contract for construction of Multipurpose Hall for Sports Authority of India (SAI) at Guwahati including Internal Water Supply and Sanitary Installations. The value of the said work was Rs.1,42,48,579/-. The period of the contract was for 12 months from the date of commencement of the work, i.e. with effect from 03.01.2003. The date of completion of the said work, as per agreement was 02.01.2004.

4. It appears from the record that the respondents herein could not complete the work for which the appellant, by issuing show cause notice, terminated the said contract and forfeited the security deposit. Under such circumstances, a dispute arose between the appellant and the respondents and a notice was issued by the lawyer of the respondents on 19.03.2005 for referring the dispute for arbitration. However, as the matter was not referred to arbitration, this Court in Arbitration Petition No.3/2005, vide an order dated 05.12.2007, had appointed Mr. Justice Dinendra Biswas, a former Judge of this Court as an Arbitrator to decide the dispute between the parties. Consequent to such appointment, the respondents who were the claimants submitted their statement of claim and the appellant herein who was the respondent in the arbitral proceedings submitted the statement of defence along with the counterclaim. Noteworthy to mention that in the counterclaim so filed by the appellant herein, the claims were made of realization of money on account of expenditure incurred for carrying out the balance work through a third party as well as on account of cost of arbitration and interest on the amount so claimed.

5. On the basis of the claim and the counterclaim, as many as 8 (eight) issues were framed which are as herein under:

1) Whether the respondents committed fundamental breach of contract as they failed to give drawings in time?

2) Whether the work was suspended from 07.04.2003 to 26.04.2003 and from

07.05.2003 to 19.08.2003 for want of drawings?

3) Whether time was essence of the contract?

4) Whether the respondents are responsible for frustration of contract?

5) Whether the contract was frustrated due to abnormal increase in prices?

6) Whether the claimant is responsible for breach of contract and whether the termination of contract by the respondents has been in accordance with law?

7) Whether the claimant is under an obligation to pay any amount under the provisions of Clauses 2 and 3 of the agreement and whether the claimant is entitled to get all the claims as claimed by him and whether the respondents are entitled to the reliefs or any of the reliefs claims by them in their counterclaim?

8) What other relief/reliefs the claimant is entitled for?

6. From a perusal of the above issues it would be seen that the issue pertaining to the entitlement of the appellant herein as regards the counterclaim therein is Issue No.7. The Arbitral Tribunal by a detail award dated 24.08.2009 passed an award in favour of the claimants/respondents herein. However, the counterclaim of the appellant was rejected on the ground that the appellant was responsible for committing fundamental breach of the agreement as the appellant failed to give drawings on time. It was also held while deciding the Issue No.6 that the appellant was responsible for the breach/frustration of the contract.

7. Being aggrieved and dissatisfied, an application was filed under Section 34 of the Act of