GOVT OF KERALA Vs. KUNHAMOO

JUDGEMENT

(1.) THIS appeal has been directed against the order of the court of Subordinate Judge, Trivandrum in O. P. (Arbitration) No. 160 of 1981.

(2.) THE facts leading to the filing of the above O. P. may be summarised as follows: THE respondent herein who is P. W. D. Contractor entered into a contract with the 2nd appellant acting for and on behalf of the government of Kerala. THE contract was a schedule rate percentage contract and schedule contained 11 items of work. THE respondent agreed to execute the work at 35. 77 per cent below the estimate rate. THE work was stipulated to be completed within four months from banding over site for work by the Department to the respondent THE site was handed over on 1-12-1977 and according to the agreement the work had to be completed by 31-3-1978. Certain disputes arose between the appellants and the respondent and these disputes were referred to the Arbitrator named in the agreement.

(3.) CONDITION No. 57 attached to the agreement reads as follows: "57. Provided also that any dispute or difference arising out of this contract can be referred to the Arbitrator within a period of six months from the date of completion of the work, the contractor shall have no right to refer a dispute or difference to the Arbitrator after the expiry of six months from the date of completion of the work. " It was requested that this issue may be decided by the arbitrator as a preliminary issue. The proceedings of the Arbitrator go to show that there were several postings for the purpose of determining the preliminary issue raised by the appellants. Presumably these facts were not brought to the notice of the successor arbitrator and the Arbitrator without considering the preliminary issue passed a non-speaking award allowing as amount calculated at 15 percent of the total value of work done after 31-3-1978 (excluding cost of departmental materials) in satisfaction of claims 1, 2 and 3 and rejecting the claim No. 4 relating to interest and costs and also the counter-claim for costs of the appellants herein.