MAHARASHTRA STATE ELECTRICITY BOARD Vs. KHARE AND TARKUNDE

JUDGEMENT

(1.) BY this petition filed under section 33 of the Arbitration Act, 1940, the petitioner has impugned Award dated 4th April 1991, made by Shri E. C. Saldanha, Retired Secretary, Irrigation Department, Government of Maharashtra, Bombay, in his capacity as an Umpire, one of the question involved in this petition is as to whether the present petition can be considered as a pending proceeding within meaning of the ratio of judgment of the Apex Court dated 12th December 1991 in the case of Secretary, Irrigation Department, Government of Orissa and ors. , (Civil Appeal No. 1403 of 1986) reported in 1991 IV Supreme Views and Law Reporter (C), 487, and what is the meaning and effect of prospective operation of the ratio of the judgment. The answer is plain and simple as discussed in later part of this judgment. The respondent are clearly entitled to rely on the said judgment and the present proceeding is undoubtedly a pending proceeding.

(2.) BY the impugned award, the learned Umpire directed the petitioner to pay to the respondents a sum of Rs. 49,15,095/- in addition to Rs. 50 lacs already paid by the petitioner against the interim award dated 17th November 1989. By Clause 3 (a) of the said award, the Umpire directed the petitioner to pay the said amount to the respondents. It was observed in the said paragraph of the award that the said sum of Rs. 49,15,095/- included interest on certain items only upto the day before the start of the pendents lite period which according to the Umpire commenced from 8th July 1989 when arguments were made before the two Arbitrators. It was further observed in the said clause of the award that pendente lite interest was awarded in view of the recent Supreme Court judgments holding that the award pendente lite interest was out side the power of Arbitrators or the Umpire. By Clause 3 (b) of the said award, the learned Umpire issued directions for preparation of final bill. Two of such directions are relevant for the purpose of this petition. In the first instance, the learned Umpire directed that the final bill would be prepared on the basis of the measurements recorded by the petitioner for the work "at contracted rates" but exluding extra items and escalation there on, the said items having been included in the sum of Rs. 49,15,095/ -. Secondly it was directed that whilst preparing and paying the final bill due, allowance should be made for inter-contract transfers of Schedule A materials from one work to another relating to the contracts awarded to the claimants M/s Khare and Tarkunde for construction of the Chandrpur Thermal Power Station i. e. Contracts B C D and E pertaining to Units Nos. 1 to 4. By the said award, it was directed that recoveries for unacounted steel recoverable after adjustment of transfers from other contracts should be made at Schedule A rates only and not at penal rates. Certain other directions were also given by the said award which need not be summarised for the purpose of disposal of this petition.

(3.) THE learned Counsel for the petitioner impugned the said award on the following grounds: