NANAKCHAND SHRIRAM SOHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Appellant was allotted a contract for construction of T.V. Tower at A.B. Road, Indore. The contract also stipulated barbed wire fencing for 60 meters at the rate of Rupees 120/- per meter. Appellant, however, outstepped the contract stipulation and extended the fencing up to 1854.24 meters contrary to the instructions of respondents. A final work bill was prepared accommodating the deviation committed by him and he was paid at market rate of Rs. 1.94 per meter for excess quantity barbed wire. He accepted it in full and final settlement without any objection or protest. Later he raised dispute that he was entitled to Rs. 120/- per meter as per contract rate, leading to the appointment of arbitrator who entered reference on 26-10-89. Respondents resisted this claim amongst others on the ground that no arbitrable dispute had arisen as appellant had accepted the final bill without any objection. The arbitrator overlooked the objection and published the award on 7-5-1990 upholding the claim of the appellant on this count and awarded him Rs. 2,12,064/- at the rate of Rs. 120/- per meter. He, therefore filed award in the Court of District Judge for making it a rule of Court.

(2.) Appellant filed his objection and prayed for a decree in terms of award. But respondents, asked for its setting aside on the plea that it was vitiated as appellant had accepted the final bill without any protest or objection resulting in the closure of the contract and death of arbitration clause. It was also pleaded by them that arbitrator had committed an error/mistake, apparent on the face of the record by ignoring and overlooking clause 12 of the contract and by mis-applying it's clause 8(e)(ii). It was also alleged by them that he had gone out of way contravening explicit provisions of the contract and had committed misconduct by disregarding crucial documents like letter dated 9-10-1985 filed by appellant himself, and passing ad hoc award of Rs. 17,800/- without notice to Engineer-in-Chief under clause 10 (e) of contract and by disallowing interest on award amount first and then allowing it.

(3.) Learned Dist. Judge deriving support from judgments of the Supreme Court and that of Bombay High Court has held as under :