STATE OF KERALA Vs. V P JOLLY FB

JUDGEMENT

(1.) :- This reference to Full Bench made on 27-2-1989 appears to us to be largely covered by the recent judgment of the Supreme Court in Associated Engineering Co. v. Govt. of Andhra Pradesh, (1991) 4 SCC 93 : (AIR 1992 SC 232), dealing with non-speaking awards of arbitration. The referring order of the Division Bench of the Full Bench thus in its concluding paragraph :

(2.) THE facts of the case are as follows : THE respondent, V. P. Jolly, was a contractor for certain road works and he entered into an agreement with the Government on 19-12- 1977 and the works were to be completed in 15 months. He contended that there was delay on the part of the Government in handing over the site, supplying cement and iron etc. that there were rains, floods etc. which delayed completion. THE defence statement of the Government to the claim statement filed by the contractor before the Arbitrator reveals that time was extended for completion of the work up to 31-12-1982 and that for that purpose a supplemental agreement was executed between the parties in which the contractor agreed not to claim compensation for the extra work or expenditure and not to claim higher rates for labour, material etc. THE said supplemental agreement stipulated that payment would be according to the terms and conditions in the original agreement, the only benefit being extension of time. Nonetheless, the contractor raised a dispute referring the claims as claims (a) to (n) in his claim statement dated 9-12-1982 claiming extra compensation and higher rates. This was stoutly refuted in paras 3, 6 and 10 of the defence statement and counter claim of May 1983 which specifically referred to the terms of the supplemental agreement not to claim extra. After several adjournments, the hearing of the case took place, as disclosed from the Arbitrator's record, only on 27-7-1983 (see pages 215-216 of record). THE notes of the arbitrator show that the claimant raised five issues and the Department is recorded to have referred to 'supplemental agreement', of the same date, 27-7-1983. He did not even care to look into the objections and call for the supplemental agreement. THE Arbitrator, Sri K.C. George, Chief Engineer (Arbitration), however, passed a non-speaking award awarding various sums under claims (a), (b), (c), (e), (g), (n) amounting to Rs. 2,30,000 / - and he rejected claims (d), (f), (j), (m) and (n). On claims (j), (k) and (l), he directed the Government to pay the final bill as per his award. Certain other incidental directions were also given. THE appellant moved the Court in September 1983 for setting aside the award as being "against the terms and conditions of the agreement", and contending that there is no justification for awarding compensation and damages, that the "Arbitrator misconducted himself in passing the award without any basis and in ignoring the evidence in the case" and that the Arbitrator "failed to carry out strictly the mandates of Agreement".

(3.) BEFORE us, an objection was raised for the respondent that the plea of misconduct and the plea that the Arbitrator acted in violation of the terms of the agreement are now raised in the appeal for the first time by the appellant. We cannot agree. The points raised in paras 3, 6 and 10 in the defence statement set out above show that there is no substance in the above objections for the respondent. In those paragraphs, the appellant pleaded that the supplemental agreement did not permit any additional compensation or higher rates to be awarded and that the award was without jurisdiction and at any rate, there was misconduct. In fact, the referring order by the Division Bench clearly admits that these pleas had been raised in the defence statement before the Arbitrator.