STATE OF KERALA Vs. K P POULOSE

JUDGEMENT

(1.) Certain disputes arising between the State or Kerala and the 1st respondent, a contractor, were referred on 26-10-68 for arbitration of the Chief Engineer in accordance with the Arbitration Clause -- Clause 34 -- of the tender notification Ext. P21. The Arbitrator issued notice dated 3-1-69 to the petitioner to appear before him. The petitioner filed his written statement on 22-2-69. The first hearing was on 4-6-69. and the second, on 17-6-69. The award was passed on 11-9-69. At the instance of the petitioner the award was filed in court and the court ordered notice of filing the award to the petitioner on 4-4-70. In response to the notice, the petitioner filed an application under S.33 of the Indian Arbitration Act 1940 (referred to hereinafter as the Act) to set aside the award on various grounds. The court below set aside the award on two of the grounds alleged, and rejected the rest. The two grounds which found favour with the court below were: first that the award was passed beyond the period of four months provided in R.3 of the First Schedule to the Act, and second that the Arbitrator was guilty of misconduct in so far as the award disclosed an error apparent on the face of the record as the Arbitrator had not adverted to, or considered, two documents, Exts. P11 and P16, Against this decision the State has preferred this appeal.

(2.) The respondent was the successful tenderer for the construction of three zonal R.C.C. over head Reservoirs, two in Mattancherry and one in Cochin, in connection with the Ernakulam - Mattancherry Water Supply Scheme. The tender notification (Ext. P21) contained Clause.34, which was the arbitration clause, which specified for a reference in cases of dispute to the Chief Engineer. It is unnecessary to extract the clause. Clause.13 of the notification reads:

(3.) We shall first deal with the question whether the award is liable to be set aside as having been made beyond the four months stipulated by R.3 of the First Schedule. S.3 of the Act enacts that an arbitration agreement, unless a different intention is expressed, shall be deemed to include the provisions set out in the First Schedule, in so far as they are applicable. We find no different intention expressed in Ext. P7 agreement; nor, in the tender notification (Ext. P21), the conditions of which were, by Clause.5, to be part of the agreement . R.3 of the Schedule I of the Act reads: