EXECUTIVE ENGINEER Vs. THEJU CONSTRUCTION CO

JUDGEMENT

(1.) Heard the learned counsel for the appellant and though the respondent represented through the counsel, the counsel did not choose to appear before this Court. This Court made it clear in the previous occasion that if the respondent's counsel does appear in the next date of hearing, the matter will be heard in his absence. Hence, this Court heard the counsel appearing for the appellant in the absence of the respondent's counsel.

(2.) The main contention of the appellant's counsel that the Trial Court erroneously reversed the arbitration award in A.S.No.26/2007 filed by the respondent. The counsel also brought to notice of this Court paragraph Nos.20 and 21 of the order. In paragraph No.20 an observation is made that on perusal of the award it doesn't not disclose that, any of such applications of the plaintiff have been considered by the Arbitrator while passing the award. It has been urged by the plaintiff in Annexure -"E' viz., letter of the plaintiff to the Executive Engineer defendant No.3 and having sent copy of the same to the then Arbitrator stating that copies of some of the pages of the measurement books supplied by the Executive Engineer are not related to the work in question and measurement book numbers are even not forthcoming on the copies and also sought for complete measurement books duly certified, the said aspect has not been considered by the Arbitrator, it has to be stated that, the plaintiff has not been properly afforded opportunity and as such, the claim of the plaintiff/claimant has been affected by the said award of the Arbitrator which can be termed that, the said aspect having not been considered by the Arbitrator, it is seriously affected the case of the plaintiff. The counsel also brought to notice of this Court observation made in paragraph No.21 having considered all the aspects, when the jurisdiction of the Arbitrator itself is questioned and the very opportunity being not heard is evidence the same and as a result of same, the Arbitrator having not followed Sec. 24 of the Arbitration and Conciliation Act, 1996, the award of the Arbitrator is liable to be set-aside. Therefore, the said materials available before the Court and in the light of the contentions of the parties and also in the light of the said rulings relied by the Advocate for the plaintiff, the circumstances involving in this case, demand for setting aside the award in question. Hence, the Trial Court exercised the power under Sec. 34(2) of the Arbitration and Conciliation Act, 1996 to set aside the award.

(3.) The counsel appearing for the appellant would vehemently contend that scope of Sec. 34 is very limited and also observation made by the Trial Court while setting aside the award is erraneous and inspite of sufficient opportunities is given and the same is noted in the award itself and also the counsel brought to notice of this Court the respondent was absent almost all the days i.e., out of 12 days, 6 times he was absent. Even Arbitrator while proceeding the matter also given an opportunity to submit any written submission by fixing the date and no such written submission is also made and having considered the opportunity proceeded to pass the award. The counsel would submits that the observation made by the Trial Court that there was no any jurisdiction and the same is erraneous. The counsel brought to notice of this Court clause 25 of the agreement between the plaintiff and respondent wherein it is clearly mentioned that if any dispute between the parties, the matter shall be referred to the sole Arbitrator who appointed by the Chief Engineer, Civil Wing, New Delhi in charge of the work at the time of dispute or there will be no Chief Engineer, the Administrative head of the said department at the time of the appointment. It will be no objection to such appointment that the Arbitrator so appointed is a government servant that he had to deal with the matters to which the Contracts relates and that in the force of his duties as government servant he had expressed. An express views on all or any of the matters in dispute or difference. The Arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Chief Engineer, CPWD, Administrative held as aforesaid at the time of such transfer, vacation of office or inability to act shall appoint another person to act as Arbitrator in accordance with the terms of the contract. The counsel referring this clause would vehemently contend that when there is no dispute with regard to the referring Arbitration dispute and the very observation made by the Trial Court that without jurisdiction an order has been passed is erraneous.