STATE OF ORISSA Vs. DANDASI SAHU

JUDGEMENT

(1.) This is an appeal by special leave from the judgment and order of the High Court of Orissa, dated 6th July, 1987. It arises out of a contract entered into between the State and the respondent for the construction of certain projects for irrigation. During 1973-74 the respondent was entrusted with the job of 'Construction of Ramaguda Minor Irrigation Project in Kukudakhandi Block' vide agreement No. 4-F-2. The value of the work was Rs. 9,99,510/-. The work pursuant to the contract commenced on 4th May, 1973 and 4th November, 1974 was the stipulated date for completion of the work. However, on 30th December, 1975 the work was actually completed. It is asserted by the appellant that the respondent contractor accepted the final payment and was duly paid a sum of Rs. 23,74,001/- for the work done by him including the extra work. Thereafter, no amount was due to the respondent, according to the appellant, and he did not raise any claim whatsoever before the Department. On 28th September, 1976 the last payment was alleged to have been made by the respondent. On 30th October, 1976 the last bill was prepared which was nil one. the respondent, thereafter, raised a claim and gave notice for appointment of an arbitrator. Consequently, the Chief Engineer appointed one Shri A. N. Nanda as the arbitrator in terms of the arbitration clause. However, on the application of the respondent the learned Subordinate Judge removed Shri A. N. Nanda and appointed one Shri B. Patnaik as the arbitrator. It may be mentioned that the application was made for removal of the arbitrator Shri B. Patnaik but the same was ,ultimately dismissed. Before the arbitrator; the respondent filed the claim raising some claims which according to the appellant, were fictitious and baseless. These claims were for the alleged extra work in respect of which the decision of the Superintending Engineer under clause 11 of the contract was final and the same was excluded from the purview of the arbitration clause.

(2.) It was contended on behalf of the appellant that the arbitrator had no jurisdiction to deal with such claims. The appellant filed a counter claim for Rs. 2,11,400/-, denying all the claims of the respondent. All the documents and relevant papers were produced before the arbitrator. It is stated that as the application for removal of Shri B. Patnaik as arbitrator was pending, an application had been made before Shri B. Patnaik. to adjourn the proceedings which was refused and the award was made. This award was claimed to have been made virtually ex parte. This, however, was not so and it appeared that the arbitrator on hearing the parties and considering the evidence produced before him made the award. The arbitrator made the said award on 18th March, 1983 but the same was a non-speaking and non-reasoned award for a lump sum of Rs. 15,23,657/- plus interest @10% from 9-9-1975 till the date of payment or decree. Objections to the said award were filed in the Court. The learned Subordinate Judge upheld the objection to the award and set aside the award on 15th September, 1984. There was an appeal to the High Court and the High Court set aside the judgment of the learned Subordinate Judge and made the award of the arbitrator, rule of the Court. It also directed payment of future interest at 6%.

(3.) Being aggrieved thereby the State of Orissa has preferred this appeal. In support of this appeal, it was submitted that the award in question was a lump sum of money and it was without any reason, in favour of the respondent. It was also submitted that the validity of the non-reasoned award is awaiting determination by a larger Bench of this Court. Hence, it was urged that this question should await decision of the larger Bench. In the facts and circumstances of the case, we are of the opinion that we would not be justified in acceding to this request on the part of the appellant. In this case the submission that the award was bad being an unreasoned one, was neither mooted before the learned Subordinate Judge nor before the High Court. This contention was also not raised in the objection to the award, filed originally. It is only in the special leave petition that such a plea has been raised for the first time. Arbitration is resorted to as a speedy method of adjudication of disputes. Stale and old adjudication should not be set at naught or examination of that question kept at bay on the plea that the point is pending determination by a larger Bench of this Court. Even if it is held ultimately that the unreasoned award per se is bad, it is not sure whether such a decision would upset all the awards in this country which have not been challenged so far. Certainly, in the exercise of our discretion under Art. 136 of the Constitution and in view of the facts and circumstances of this case, we would not be justified in allowing the party to further prolong or upset adjudication of old and stale dispute.