UNION OF INDIA Vs. BUDHLANI ENGINEERING P LTD

JUDGEMENT

(1.) This is an application for setting aside of an award passed by the learned arbitrator in the arbitration between the aforesaid parties. The award is a speaking one and proceeding commenced when the Arbitration Act, 1940 (since repealed), was in force. Therefore, the provisions of Sections 30 and 33 of the aforesaid Act has been invoked. There is no dispute as to the applicability of the aforesaid provision nor do I find under the law any doubt about it. Going by the grounds made in the said petition there is no substance under the law to entertain the application. All the grounds mentioned in the petition relate to the alleged wrong appreciation of the facts by the learned arbitrator. On what ground the application can be accepted is precisely mentioned in Section 30 of the said Act. None of the grounds specifically allege in the petition. However, Clause (c) of Section 30 of the said Act enables the court to examine whether the award is otherwise invalid or not. The short facts of the case for appreciating the problem properly are to be stated hereunder : The respondent contractor agreed to carry out a civil construction work worth value of Rs. 19,47,050. The time limit for completion was fixed for one year from the date of awarding contract. The work was to be completed by February 10, 1990. However, it was actually completed on June 13, 1991, as such there was a delay of more than 16 months in completing the works. The claimant/contractor after completion of the works submitted bills and there was dispute with regard to the quantum of the final bill. The final bill was not paid for a long time despite repeated request and representation. The petitioner received such payment and the same was received "under protest" and without prejudice to its claim for further sum. The final payment was made when the petitioner was forced to strike out the endorsement "with protest". The respondent is said to have recorded full and final satisfaction and certificate of clearance of all dues. It is contended that such endorsement was compelled to be made in view of withholding of the amount of final bill. On the aforesaid background the dispute arose between the parties and constitution of forum of arbitration was demanded but refused. Ultimately, with the intervention of the court under Section 20 of the aforesaid Act, the learned arbitrator was appointed. I find from the records initially a retired judge of this court Mr. Justice Satya Brata Mitra was appointed arbitrator, however, this appointment was later on proved to be infructuous so his appointment was set aside. A departmental arbitrator was appointed thereafter and this learned arbitrator made and published award and the same was set aside eventually by the court. Thereafter the court appointed hon'ble retired Chief Justice Mr. Sambhu Chandra Ghose as sole arbitrator, in place and instead of the departmental arbitrator. Before Justice Ghose could conclude he had expired. Mr. Partha Bihari Mukhapadhyaya, since deceased, had later on appointed arbitrator in his place and stead, who ultimately made and published the award and the same is brought under challenge.

(2.) Mr. I. P. Mukherjee the learned advocate appearing for the petitioner contends that the learned arbitrator had committed legal misconduct while entertaining the dispute and claim of Rs. 2,48,766.99 on account of final bill. As the contractor/respondent struck out the remark "under protest" and further endorsed thereon "accepted as full and final". He therefore, contends there was no arbitration agreement in existence in view of agreeing and recording satisfaction of the claim and discharge of the agreement. When there has been no agreement between the parties and no dispute under arbitration agreement did exist.

(3.) He contends that the learned arbitrator did not reach any finding that the respondent exercised duress and coercion over the petitioner which resulted in the petitioner striking out of the remark "under protest" and endorsing the remark as above. The learned arbitrator merely holds that the respondent was made to do so "under compelling circumstances". According to him in the absence of such findings the above endorsement of according satisfaction stands. As such, there has been no arbitrable dispute between the parties and the arbitrator had no jurisdiction to hold that according and satisfaction was of no effect.