ALWAYE MUNICIPALITY Vs. K A KOCHUNNY AND COMPANY

JUDGEMENT

(1.) THESE appeals filed under Section 39 (1) (vi) of the Arbitration Act (for short the Act) by the Alwaye Municipality represented by its Commissioner, are against a common order passed by the Principal Sub Judge, Parur, dismissing petitions filed by it to set aside awards made by the 2nd respondent, the Chief Engineer (Arbitration) Tri-vendrum, in favour of the 1st respondent, a P. W. D. contractor, granting certain claims made by the contractor against the Municipality. The questions raised are the same and hence the appeals are being disposed of by this common judgment.

(2.) WE shall first deal with the facts of each case. M. F. A. No. 113 of 1981: The 1st respondent entered into a contract with the appellant for the construction of a mini market under the terms and conditions embodied in the contract between them. After the completion of the work, me 1st respondent made certain claims on the appellant. According to the appellant, those claims were not admissible under the terms of the contract. Clause 14 of the contract between the parties provided for settlement of disputes and differences between them to be referred to the Chief Engineer. P. W. D. (B. & R.) Kerala, Trivandrum, for arbitration at the instance of either party to the dispute. Since the claims by the 1st respondent were not admitted by the appellant, he wrote to the Chief Engineer, Kerala P. W. D. (B & R), Trivandrum explaining the details regarding the disputes and differences between the parties and requested him to enter upon reference and decide the disputes at the earliest. The Chief Engineer declined to accept the appointment According to the 1st respondent, despite several letters and notices sent by him to the appellant to get the dispute referred to arbitration, the appellant kept quiet. Thereupon he filed O. P. No. 5 of 1978 under Sections 8 and 20 of the Act for the appointment of an arbitrator. This was allowed and the 2nd respondent was appointed as arbitrator. Tbe arbitrator entered upon the reference, allowed evidence to be adduced and after hearing the parties made an award granting some of the claims of the 1st respondent. As against the claims made by the 1st respondent for the difference in value between gray cement and super fine cement, against the tender excess for the extra work done, and towards the excess wages paid by him to women coolies on the basis of the minimum wages fixed by the Government subsequent to the agreement, certain amounts were granted by the 2nd respondent. The appellant Municipality resisted these claims on the ground that they were not admissible as per the terms of the contract. The Municipality relied upon condition No. 4 in the contract which stipulated that the Municipality was entitled to recover the costs of cement supplied to the contractor on the basis of actual cost plus 20% storage charge and on condition No. 5 which provided that the contractor was obliged to use cement according to the direction of the Municipal Engineer on the basis of availability. Regarding the excess for the extra work the contract provided that he was to be paid for at the estimate rates. Regarding the wages of women coolies, since there was no provision for escalation, the rates for the work included the wages for labourers also. The Municipality filed O. P. 22 of 1980 under Sections 30 and 32 of the Act to set aside the award. That application was dismissed which has given rise to this appeal.

(3.) M. F. A. No. 115 of 1981 : The contract in this case is for the construction of an office building under the terms and conditions embodied in the contract. O. P. No. 7 of 1978 was filed for the appointment of an arbitrator. The 2nd respondent was appointed arbitrator. Rs. 1,11,433/-was granted as a 60%, increase from the agreed rates; Rs. 42,000/-as difference in price for for steel as against mild steel; and Rs. 2.750/-as excess for plastering. These claims were resisted by the Municipality as being not admissible as per the terms of the contract. Dissatisfied with the award, the Municipality filed O. P. No. 24 of 1980 to get the award set aside, without success. Hence this appeal.