SUPERINTENDING ENGINEER, LEFT BANK BARRAGE CIRCLE, FARAKKU BARRAGE PROJECT & ANR. Vs. M/S. CONSTRUCTION AND TRADING CORPORATION

JUDGEMENT

(1.) This appeal is against the judgment and order passed by the Sub-ordinate Judge, Malda, in a proceeding initiated under section 14 of the Arbitration Act. It appears that the respondent entered into an agreement bearing No. 8/66-67 between the Union of India and the Plaintiff-Corporation, namely, M/s. Construction & Trading Corporation having its office at 105, Park Street for the construction of Left Guide Bundh and Afflux Bundh of Farakka Barrage at Khejuriaghai. The letter of intent was issued on 30th March, 1966 and initial date of completion of work was fixed on 30th June, 1968 but the time for completion of work was extended from time to time upto 30th June, 1972. Payment was made by the Government to the respondent according to the agreed rates. The respondent Corporation made representation to the Union of India for enhancement of rates alleging increase of expenditure caused by the nonavailability of the entire land at a time, non-supply of machinery per agreement, delay in reimbursement of toil charges, acute shortage of food grains in the locality and other incidental matters leading disruption of the entire planning and programme of work. In view of this representation, disputes and differences arose between the parties over revision of the agreed rates and the enhancement thereof and in terms of clause 23 of the Contract, the matter was referred to the arbitration of Sri A. K. Mitra as the sole arbitrator but as Mr. Mitra could not arbitrate did not arbitrate for administrative reasons. Mr. G. K. Datt, Superintends Engineer, Planning and Designing Circle,was appointed as the sole arbitrator and the parties file before the sole arbitrator their claims and counterclaims. The claim of the plaintiff was based on the 67 Running Account Bills for Rs. 72.55.422/-, being 50% of Rs. 1.45.10.844/-. The Government denied the same and submitted that the increased payment as claimed was not tenable. The sole arbitrator finally made his award on 19th June, 1973 and allowed the claim of the respondent for Rs. 35.14000.00. Thereafter the arbitrator filed the award to the Court. Notices of the filing of the award were issued to the parties The appellant filed the objection to the award on 23rd Aug., 1973 for setting aside the award, filed in the Court on 31st July, 1973 by the Arbitrator. This application was verified and the verification is in the following terms solemnly affirm that the statements made above are true to my knowledge and put my signature to-day on it at my office. To this application for setting aside a award, a petition of objection was filed by M/s. Construction & Trading Corporation on 8th Nov., 1973 stating therein, inter alia, some facts as to why the award should not be set aside. Against the said objection again a reply was filed on 23rd April, 1974 and in the matter of a petition for setting aside the award filed in Court on 31st July, 1973 by the Appellant, Union of India and to that again be reply was given by the Corporation on 25th July, 1974.On the basis of this objection filed, three issues were framed by the learned Sub-ordinate Judge whether the case has been made out for setting aside the award. The issues on the question as to as framed were as follows:- (1) Is any of the petitions of the defendant-Government for setting aside of the award barred by limitation (2) Is the award liable to be set aside? (3) Is the plaintiff-Co-oration entitled to get a decree in accordance with the award and (4) Should the interest be decreed on the award? It was held, inter alia, on the Issue No. 1 that the Government's petition dated 23rd Aug., 1973 is within time but the second petition for setting aside the award filed on 23rd April, 1974 is barred by limitation and cannot be taken any notice of in the proceeding. On the first point, therefore, the learned Sub-ordinate Judge held that the first petition filed by the Government is within time. The application which was filed on 23rd April, 1974 is barred by limitation and therefore the said application cannot be taken notice of in the proceeding. In the view that we take, it is not necessary for us to discuss the other-facts in this appeal We must make it clear that we have not decided in this case the validity of the award for the reasons hereinafter slated. We are of the opinion that the learned Sub-ordinate Judge was wholly wrong in holding that the alleged petition filed on 23rd April, 1974 is barred by limitation as we are of the opinion that it is only reply to the objection filed by-the respondent to the initial objection for setting aside the award filed by the Union of India which was admittedly within time.

(2.) Mr. B. Das and Mr. T.K. Basu, however, argued the the second petition is not an independent one but it is only a continuation of the proceeding for setting aside the award. The Union of India filed the application within time for setting aside the award stating the grounds made therein. The second petition dated 23rd April, 1974 was a rejoinder to the objection filed by the respondent and certain facts were stated therein to controvert the allegation made in the re-joinder by the Corporation and" also to give facts on which the grounds stated in the first petition dated 23rd Aug., 1973 are based.

(3.) Mr. R. C. Deb appearing for the respondent contended that the petition dated 23rd Aug., 1973 and the petition dated 23rd April, 1974 are independent petitions, and therefore the petition filed on 23rd April, 1974 is beyond 30 days and therefore is barred by limitation. Mr. Deb argued that the first petition filed by the appellant must be rejected as no averment of fact is to be found in the first petition and therefore it is argued that the second petition filed on 23rd April, 1974 is barred by limitation under section 30 of the Arbitration Act. It is argued that the first petition has not been filed on affidavit and moreover it is argued that there is no fact which has been alleged in the first petition.