NIKUNJA BEHARI HALDAR Vs. CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This is an application under Sec. 30 read with Sec. 33 of the Indian Arbitration Act filed by the Award-holder. The facts are briefly as follows :

(2.) The petitioner has in this application under Sec. 3 read with Sec. 33 of the Indian Arbitration Act challenged only two partitions of the award. The sum of Rs. 4,98,771.06 p. which has been ordered to be deducted from the claim of the petitioner on the ground that the respondent was entitled to the said amount of penalty being the 10% of the gross value of the tender work. The petitioner has also challenged the award of' Rs. 61,743.26 p. for the value of the excess work done by the petitioner after 27th Nov., 1984 and has claimed that part of the award may be rectified by enhancing the value of the said excess work to Rs. 7 lakhs. It is, therefore, prayed that the award dated 12th May, 1990 be set aside and/or rectified by deleting the deductions of Rs. 4,98,771.06 p. and by substituting the dues of the petitioner from Rs. 61,743.26 p. to Rs. 7 lakhs for the value of the excess work done by the petitioner after 27th Sept., 1984.

(3.) The respondent contest this petition contending, inter alia, that the petitioner under the provisions of Sec. 30 cannot pray for partial setting aside of the award and the application is therefore not maintainable. It is also submitted that the Arbitrator on considering the whole evidence on record and having been satisfied that the imposition of penalty under Clause 2 of the tender agreement being not arbitrable rightly affirmed the imposition of penalty under Clause 2 of the contract and did not commit any illegality whatsoever in deducting the said amount of penalty from the total claim awarded to the petitioner. It is also submitted that the amount awarded for extra work done was on the basis of the evidence produced by the parties before the Arbitrator which are all question of fact which this court cannot interfere when the award of the Arbitrator is based on evidence and this court does not sit in appeal ever the award of the Arbitrator.