(1.) THE Pioneer Construction Company, the respondent, entered into an agreement on 5-6-1970 with the Superintending Engineer, Nagarjunasagar Canals Circle, Jaggayyapet, for excavation of the balance of the earth work of Munagala deep cut from mile 72/4 to 74/4 of Nagarjunasagar Left Main Canal. Since he did not complete the work in spite of repeated extensions of time, the contract was finally terminated with effect from 30-7-72 under clause 61 of P.S. to A.P.D.S.S. THE respondent also requested the department to terminate the contract in his letter dated 18-7-1972. At the instance of the respondent, the matter was referred to the Arbitrator under clause 73 of P.S to A. P. D. S. S. THE Arbitrator gave his award on 30-4-1974. It is partly in favour of the respondent. THE respondent filed O. S. No. 122 of 1974 in the Court of the Subordinate Judge, Vijayawada under S. 14 (2) of the Arbitration Act for directing the Arbitrator , the 4th respondent , to file the award into Court. O.S. 117 of 1974 was filed by the Government, the Superintending Engineer and the Executive Engineer to set aside the award. Both the matters were heard by the Subordinate Judge, Vijayawada. THE learned Subordinate Judge made the award a rule of the Court and passed the decree in terms of the award. He allowed O. S. No. 122 of 1974 filed by the respondent and dismissed O.S. 117 of 1974 filed by the Government. Questioning his judgement the Government have filed C. M. A. 571 of 1974 and 572 of 1975 in this Court.
(2.) THE learned Government Pleader has confined is argument to the three items in dispute between the parties. THE first relates to the supply of gelatine, the second to the payment of hire charges for the machinery supplied by the Government and the third is to the difference of amount payable by the contractor to the Government on termination of the contract.
(3.) THE learned Government Pleader relying upon clause 10 of the agreement, the letter of the Contractor date 29-6-191 (Ex. A-2) and the three receipts (Exs. A-4 , A-5 and A-6) has submitted that the contractor is bound to pay for the gelatine at the rates mentioned in those receipts at least for the consignments covered by them. Exs. A-4, A-5 and A-6 are the receipts for the purchase of gelatine by the contractor from the department. THEy were sent to the Arbitrator only after the enquiry was completed but before the award was passed. No opportunity was given to the contractor to explain them. Apart from that, other receipts Exs. A-9, A-10, A-11, A-12 and A-13 which are of earlier dates show that the gelatine that was imported from Yugoslavia and Poland was supplied by the Department to the respondent at the rate of 4.95 per kilogram. THE Arbitrator as well as the learned Subordinate Judge have held that there was no agreement that the respondent should pat at a higher rate for the gelatine that was imported and supplied to him. We agree with this finding . THE agreement does not say that if the gelatine is imported and supplied to the respondent, he should pay at a higher rate. In his letter dated 29-6-1971 the respondent did not undertake that he would pay a higher rate for the imported gelatine. Exs. A-9 to A-13 clearly show that for the gelatine imported from Poland and Yugoslavia the respondent was charged only at the agreement rate of Rs. 4.95 per Kg. It is true that Exs. A-4, A-5 and A-6 show different rates for the imported gelatine. Merely because somebody on behalf of the contractor had signed them, we cannot infer an agreement that he had agreed to pay at the rate mentioned in those receipts. Those receipts at best are evidence of the receipts of the material. If really it was the intention of the Government that they wanted to supply the imported gelatine at a higher rate, then we do not see any reason why they had charged only Rs. 4.95 ps. in EXs. A-9 to A-13. THE learned Government Pleader has submitted that the clerk who has written those receipts had, by mistake, mentioned the agreement rate. But no such evidence is placed before the Arbitrator or the Court. In these circumstances, we have no hesitation in holding that the respondent should be charged only Rs. 4.95 per Kg. for the imported gelatine that was supplied to him and we reject this contention.