STATE OF WEST BENGAL Vs. HALDER BROTHERS

JUDGEMENT

(1.) This is an application for setting aside the Award filed by the petitioner namely State of West Bengal through Superintendent Engineer, South Circle Construction Board praying for setting aside the Award passed by Sri Kesab Sen, the Sole Arbitrator dated 17th May, 1989. It is submitted that the Award is a non-speaking Award and without reason whatsoever and no indication whatsoever of the mind of the Arbitrator to be ascertained from the Award. The Award is passed on mere hypothesis and conjecture and not on the basis of evidence and materials whatsoever, that the Arbitrator failed and neglected to consider the fact that on the prayer of the respondent Director, extension of time was given to him by the State of West Bengal and on ground of such extension of time and acceptance thereof without any precondition about (sic) the respondent is obliged to execute the work during the extended period without extra payment and that the Arbitrator according to the principles of natural justice is obliged to give reasons as to why such sum of Rs. 4,47,550 and also interest of Rs. 35,800 will have to be paid to the respondent/contractor when according to the petitioner nothing is due and payable to the respondent contractor in respect of the works covered by the tender in question. It is also submitted that in the absence of books and account and details in support of the claim for idle labour and idle establishment, the Arbitrator should not have granted any Award in respect of the same claim.

(2.) As the delay has been committed in filing this application, the petition under Sec. 5 of the Limitation Act has been filed praying for condonation of delay.

(3.) Both application for condonation of delay as well as the main application for setting aside the Award has been opposed by the respondent by filing an Affidavit-in-Opposition. It is submitted on behalf of the respondents that because of various branches committed by the petitioner in respect of the terms of the contract the respondent was prevented from completing the work within the stipulated time and having suffered in respect of the said breaches committed by them. The petitioner extended the time for completion of the contract from time to time and in the arbitration proceeding requested the arbitrator to adjudicate as to on whose fault the execution of the work did prolong, that when the Arbitrator has passed his award on the basis of such contentions and the arbitrator having considered those allegations of the petitioner has passed the Award in question, the petitioner is now precluded from reiterating those points in this petition. It is submitted that the receipt of the payment of dues and the filing of final bill does not cannot extinguish the right of the respondent to refer the claims to arbitration, that the final bill was not received by the respondent extinguishing all their claims and the final bill being not paid by the petitioner in the event of the respondent not issuing such a certificate, the certificate has to be issued. It is further contended that the petitioner contested all the claims of the respondent before the Arbitrator with the same and identical defence and when the Arbitrator having heard the parties and having considered the respective cases of the parties has passed the award in question then it being non-speaking award, there is no error on the face of the award to render the award invalid for liable to be set aside. It is further submitted that either by the terms of the Arbitration agreement or in the reference or in law the Arbitrator was not required to give reason of the Award and that non-speaking perse is not bad in law. It is also denied that the award of the arbitrator is passed on mere hypothesis and conjecture or that same is not based on evidence on materials whatsoever. It is further submitted that it is apparent and manifest that the Arbitrator made and passed the Award having considered the documents and records filed and used by the parties along with their respective pleadings and having heard the arguments advanced by the respective counsels of the parties.