STATE OF ORISSA Vs. GOKULACHANDRA KANUNGO

JUDGEMENT

(1.) BOTH the appeals arise out of judgments overruling the objections of the appellant and making the award of the arbitrator rule of the Court in matters of reference made to the arbitrator by the court. Plaintiff-respondent is a contractor and he entered into a contract with the State of Orissa for construction of high-level bridge over river Rusikulya on National Highway No. 5 in the district of Ganiam. The work was to be completed within thirty months from the date of the written order. As the work could not be completed within time, the contractor made claims which were referred to an arbitrator.

(2.) IN M. A. No. 249/80, the facts are that a sum of Rs. 12.14 lakhs being the difference between the estimated cost and the tendered amount of the contractor for item No. 35 of the tender was to be deducted from the running bills up to the construction of deck level in phases and when the contractor would start pre-stressed concrete superstructure work, the said deducted amount would be released in phases in addition to the payment which the contractor would get as per his quoted rates for the superstructure. The case of the contractor is that in order to re-cast girders, he collected material and hired the services of technical experts, but the concerned Department did not furnish the designs for such girders and consequently he sustained loss due to wastage of materials etc. and could not complete the work in respect of item No. 35 of the tender. He requested the Department to release the amount deducted from his running bills and not to make any further deduction. His further allegation is that there was change of designs, he was required to sink twin D. Wells under abutments and thus had to incur more expenses. He prayed for appointment of an arbitrator, but as the defendant-appellant did not appoint any the plaintiff- respondent filed application under Section 20 of the Arbitration Act to call for the agreement and to appoint an arbitrator. After hearing the parties, the learned Subordinate Judge referred the disputes for arbitration on the following questions:

(3.) THE next contention of the appellant is that the arbitrator has exceeded the scope of reference and there was no reference on the points decided by him. This argument relates to extra work claimed to have been performed by the contractor. Nothing is apparent on the face of the award whether the works executed by the contractor were extra works or were beyond the agreement. As we have already held above, the award being a non-speaking one and the agreement not being made a part of the award, the court cannot go into those questions and the award cannot be struck down on that count. Even assuming that claims on extra items of work have been made, in that case, Clause 11 of the contract will come into operation and not Clause 23, Reiving on the decisions in A. C. Parlia and Hindusthan Steel cases ((1970) 36 Cut LT 1089 and ILR (1973) Cut 1218) (referred to above), this Court has held in State of Orissa v. G. C. Kanungo, (1979) 48 Cut LT 505 : (AIR 1980 Orissa 157) that the arbitrator has jurisdiction to decide matters regarding additional work, as in deciding those matters, disputes and questions arising out of the contract may have to be considered and decided by the arbitrator. This view has been reiterated in a recent decision of this Court reported in (1981) 52 Cut LT 37 : (AIR 1981 Orissa 124) (referred to above.) THE consistent view of this Court in four previous decisions from 1970 to 1981 have been followed which include the cases of A. C. Parjia, Hindusthan Steel and G. C, Kanungo. THE Hon'ble the Chief Justice has also reiterated the same view in M. A. Nos. 29. 30 and 62 of 1981 disposed of on 7-5-1981 (referred to above).