STATE OF KERALA Vs. T P GEORGE

JUDGEMENT

(1.) THE appellants are the State of Kerala and the Superintending Engineer, kottarakkara. THE respondent was the claimant in the arbitration proceedings. He is a contractor. He entered into an agreement with the appellant on 22-8-1977 to execute the work called the "k. I. P. main canal driving a tunnel at Nedumparambu between CH. 27870 to 28500 H". THE estimated amount was 1,25,79,747/ -. Probable amount of contract was fixed at Rs. 29,64,537/ -. THE work was awarded at 19. 5 per cent above the estimate rate. THE work involved the construction of a tunnel for a total length of 610 metres. Certain disputes arose in respect of the work in 1979. THE respondent filed an application for reference to an arbitrator on 29-6-1979. A substantial part of the work was by then over. THE arbitrator to whom reference was made, passed bis award on 30-11-1979. THE respondent claimed additional payments on different counts in the arbitration proceedings. He was awarded a sum of Rs. 1,20,000/ -. Subsequently on 3-4-1980 the respondent made another application for reference claiming amounts which according to the appellants were covered in the earlier reference. THE arbitrator again passed an award substantially allowing the claim despite opposition by the appellants. THE award was filed in court. THE appellants prayed that the award be set aside or remanded to the arbitrator. THE objections were overruled by the court below and a decree in accordance with the award granting 6 percent interest was passed. This appeal is directed against the said decree passed on 22nd September 1980.

(2.) THE appellants' case rests on the following grounds. (1) THE second arbitration proceedings are barred by constructive res judicata. THE arbitrator has not considered this plea while making the award. (2) THE claims covered by the second reference were the subject matter of the first reference. THE respondent is therefore barred from re-agitating such claims in a second reference. (3) Both the references were made when more than 90 percent of the work was over. THErefore, the claims in respect of the loss due to nonavailability of plastic materials, failure of non-supply of electricity and claims in respect of losses due to accidents were not made bona fide and were not allowable.

(3.) THE appellants' counsel took us through the various terms of the contract and other materials in the files. His main contention is that the claims made by the respondent and allowed by the arbitrator related to matters which the respondent was not in law entitled to agitate over again and that he had not put forward those claims in the earlier reference. Claim No. 1 relates to non-availability of plastic materials. Claim No. 2 non-supply of electricity, Claim No. 4 losses due to accidents. Claim No. 6 losses due to labour strike etc. He took us through the terms of the agreement to inform us that some of the claims were beyond the stipulations contained in the agreement. He submits that the arbitrator exceeded his jurisdiction in allowing those claims.