KARUNAKAR KHATUN Vs. STATE OF ORISSA

JUDGEMENT

(1.) SHRI Karunakar Khatun, a contractor, has filed this appeal under Section 39(vii) of the Indian Arbitration Act, 1940 assailing the judgment passed by the learned Subordinate Judge, Dhenkanalin Title Suit No. 18 of 1983 dismissing the suit. The said suit had been filed by the appellant under Sections 30 and 33 of the Act challenging the award passed by the Arbitration Tribunal, Orissa (for short, "The Tribunal") holding, inter alia, that the claimant (appellant) was not entitled to any amount under any of the items of his claim except the amount found due to him under the final bill. As the judgment of the trial court shows, the award was challenged mainly on the grounds that the Tribunal has misconducted itself and the proceeding in passing the award; that the award had been improperly procured and was otherwise invalid and that the award was liable to be set aside as the documentary evidence adduced in the proceeding was not discussed at all and since the plaintiff (appellant) and the defendant (respondent) had both objected to the award by filing petitions under Sections 30 and 33 or the Act, it ought to be set aside. The learned Sub -ordinate Judge negatived the contentions of the appellant on all the points.

(2.) THE main contention raised by Shri S.K. Sangnerin, learned counsel for the appellant was that the Tribunal failed to comply with the principle of natural justice in the proceeding inasmuch as it did not afford opportunity to the appellant to adduce oral evidence and to get the rock found at the site of work examined by an expert though he had specifically sought for opportunity for this purpose from the Tribunal. In view of the contention raised by the learned counsel the scope for consideration lies within a narrow compass. Therefore, it is not necessary to set out in detail the facts of the case. The facts relevant for the present purpose may be stated thus : The appellant -contractor had obtained a total sum of Rs. 2,44,052.00 from the respondent Executive Engineer, Prajang Canal Division under nine different items including Rs. 38,914 towards cost of excavation in foundation in a special type of compressed rock for which, according to the appellant, there is no rate either in the agreement or in the schedule of rates (claim item No. 1). Rs. 20,000 for clearing heavy jungle at the site of work (claim item No. 3), Rs. 5,643 towards excavation of foundation of soil interlocked with trees and bushes (claim item 4), Rs. 83,280 comprising of claim of Rs. 66,330 for idle labour and Rs. 16,900 for idle establishment (claim item No. 6), Claim item No. 7 relates to the plea of the appellant that the contract may be closed with effect from 25.11.1981 without any penalty or compensation. The case of the respondent in this regard was for closure of the contract under clause 3(a) of the agreement forfeiting the security deposit and for compensation of Rs. 94,049 under clause 2 of the agreement. Claim item No. 9 is for Rs. 21,000 towards overhead expenditure for the construction of 20 labour sheds and one storage godown. As noted earlier, all the claim items were rejected by the Tribunal. The main reason which appears to have weighed with the Tribunal is that the contractor abandoned the work in the middle without any justification.

(3.) COMING to the second question formulated earlier, it is clear from the award passed by the Tribunal which is, in my view, a reasoned one, that opportunity of hearing was granted to both the parties and the Tribunal visited the site of work for proper understanding of the claims put up by the appellant and the contention raised by the parties. However, there is no mention in the award about the granting of opportunity to the appellant to adduce oral evidence. From the order -sheet in the proceeding, particularly the orders passed on 16.12.1982 and 12.1.1983 it is clear that the appellant had been repeatedly seeking orders from the Tribunal to produce oral evidence and the Tribunal had passed order that opportunity to adduce oral evidence will be given to him as and when necessary. No order was passed holding that there is no necessity to adduce oral evidence in the case. The net result therefore is that the appellant's requests for adducing oral evidence were not considered till the proceeding was disposed of by the Tribunal. On a fair reading of the claims put forth by the appellant it is manifest that on many items oral evidence could have been led by the parties. It is however difficult to say the exact nature of oral evidence which the appellant could have placed before the Tribunal. The Tribunal should have the heard the appellant on the matter and passed a considered order either accepting the prayer to adduce oral evidence or giving its reasons for not accepting the said prayer. I would not like to devolve further into the merits of the claims of the appellant since I propose to remit 'he matter to the Tribunal for reconsideration. It is also relevant to note that both the parties were dissatisfied with the award and had filed applications under Sections 30 and 33 of the Act to set it aside.