C M D A Vs. NIKUNJA BEHARI HALDAR

JUDGEMENT

(1.) THIS appeal by Calcutta Metropolitan development Authority is against a judgment and order dated 29th august, 1990 passed by a learned Judge of this Court. This appear arises out of an arbitration under Section 30 read with Section 33 of the arbitration Act, 1940.

(2.) THE award under challenge is one reasoned award made and published by a retired Chief Justice of this Court. By the said award the learned Arbitrator made an award item wise for a sum of Rs. 6,42,790. 49p. The respondent made a claim for Rs. 18,65,018/- on various items of claim.

(3.) THE respondent in this appeal challenged the said award dated 12th may, 1990 before the Court of first instance only in respect of two portions of the said award. The one relating to the sum of Rs. 4,98,771. 06p which had been ordered to be deducted from the claim of the petitioner on the ground that the respondent was entitled to the said amount by way of penalty being the 10% of the gross value of the tender work. The other one is relating to a ward of Rs. 61,743. 26p being the value of excess work done by the petitioner after 27th September, 1984. The respondent claimed that this part of the award may be rectified by enhancing the value of the said excess work to Rs. 7 lakhs. The respondent, therefore, prayed before the court of first instance that the said award dated 12th May, 1990 should be set aside or rectified by deleting the deduction of the said sum of rs. 4,98,771. 06p and by substituting the dues of the petitioner from rs. 61,743. 28p to Rs. 7 lakhs for the value of the excess work done by the petitioner after 27th September, 1984. At the hearing before the Court of first instance, the respondent did not press the second ground, namely, the said claim regarding extra work done after 24th September, 1984.