BENNY YOUNACHAN Vs. SECY. TO GOVT.

JUDGEMENT

(1.) The appellants are the additional claimants in an arbitration case, being the legal representatives of one Benny Younachan, to whom we shall refer as "the contractor" for purpose of convenience. The contractor had entered into an agreement with the government on 19-10-1976 for the construction of a portion of the P. I. P. Canal, the work to be completed by 31-5-1977, The time was however extended upto 15-1-1978 by agreement between the parties. It is said that the work was completed in time and handed over to the first respondent - State.

(2.) The contractor claimed additional amounts alleging defaults on the part of the respondents which led to an arbitration by the Chief Engineer (Arbitration). The contractor's claim was rejected on the first occasion on the ground that he had received the final bill without objection and was therefore estopped from claiming further amounts. This award was set aside by the Sub Court, Pathanamthitta in arbitration O. P. No. 43 of 1979 with a direction to the arbitrator to consider the matter afresh. This order was taken up to this court in C.R.P. No. 1284 of 1980 which was dismissed on 7-8-1980. But a further contention was taken in this court by the respondents herein that the arbitration proceedings were barred because the contractor had not put forward his claim within a period of six months of completion of the work This court did not deal with this question, but gave liberty to the respondents to raise the point before the arbitrator. The arbitrator accepted this contention in the subsequent proceedings and again rejected the contractor's claim. This resulted in another arbitration petition O. P. No. 21 of 1981 in the Sub Court, Pathanamthitta which was allowed by the court and the award set aside, leaving it to the arbitrator to deal with the matter on the merits, This was also carried to this court by the respondents, but the challenge was unsuccessful. The arbitrator thereafter proceeded to deal with the matter on the merits. He gave notice on 3-4-1982, posting the case to 24-4-1982 for evidence. The matter was then adjourned to 4-5-1982 at the instance of the respondents when a witness, one P. P. Jose, retired Chief Engineer, was examined on their side. The arbitrator then gave a notice on 17-5-1982 posting the case for hearing on 22-3-1982. The matter was heard on that day, and an award is stated have been passed on 24-5-1982 awarding a lump sum of Rs. four lakhs to the contractor in respect of all the claims made by him against the respondents. The contractor produced the requisite stamp paper on 25-5-1982 and the award was engrossed thereon. The arbitrator communicated the award to the parties on 29-5-1982.

(3.) The award engrossed on stamp paper as also the copies of the award furnished to the parties, showed its date as 10-5-1982. The covering letters accompanying the award were also dated 10-5-1982. But the original award which was communicated to the Sub Court, Pathanamthitta on 31-5-1982 bore the date 24-5-1982, with the covering letter bearing the date 10-5-1982. The contractor appeared and filed I. A. No 263 of 1982 under sections Hand 17 of the Arbitration Act, 1940 (the Act) for passing a decree in terms of the award. The contractor stated in this application that the award had been passed by the arbitrator on 10-5-1982 and that the same had been filed in court for passing a decree. The respondents in their turn filed IA. No. 350 of 1982 for setting aside the award alleging misconduct on the part of the arbitrator According to them, the award had been passed in violation of the principles of natural justice, on 10-5-1982, even before the hearing on 22-5-1982, of which notice was given on 17-5-1982. The respondents stated that it was a procedural misconduct on the part of the arbitrator to pass the award before the parties were heard, and therefore it had to be set aside.