ANANDA CHANDRA BARIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant in this appeal has assailed the judgment dated 4th May, 2010 passed by the learned District Judge, Balasore-Bhadrak, Balasore in Arbitration Petition No.133 of 2003 thereby reducing the quantum of awarded amount, rate of interest and the period for which the interest is payable and allowing the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996, in short, "the Act", in part.

(2.) . From the records, it appears that the appellant being a 'A' class contractor, entered into a contract with the respondent for construction of Court building of the Chief Judicial Magistrate, Bhadrak, Phase-I. The work was scheduled to be commenced on 25th November, 1995 and completed within six months, i.e., on or before 24th May, 1996. The original plan and design for the construction of the said building provides the foundation of the building to rest over 270 nos. of double under-remade bored R.C.C. piles each having length of 4.10 mtrs. to be cast in Situ. While casting the R.C.C. piles in Situ in the presence of the respondent, Sub-Divisional Officer and Junior Engineer, difficulties were felt to reach the Designed Foundation Level as the nature of soil met with below the ground level was entirely loose sand and there was perfuse percolation of water. The Chief Engineer, Design Planning and Investigation inspected the site on 7.1.1996 and suggested to eliminate the pile foundation and resort to open footing foundation after conducting the plate bearing test to ascertain the bearing capacity of soil. Thereafter, the design of foundation was completely changed and the changed open footing foundation of the work was introduced after conducting plate bearing test. The revised design of the foundation was approved by the Chief Engineer, Design, Planning and Investigation on 6th February, 1996 and issued to the appellant on 14th March, 1996. Due to the revision of the design of foundation work, there was involvement of additional/extra item of work with a higher rate. However, the respondents without settling the rate of the said extra work, instructed the appellant to proceed with the work and complete the same by July, 1996. Accordingly, the progress of work was stopped for want of revised foundation design and it was not possible on the part of the appellant to complete the work within the time and the appellant also sustained loss due to such revised approved plan and his workers/ labourers, work establishment, transportation vehicles etc. became idle from 25th November, 1995 to 30th March, 1996. The appellant also intimated the above fact to the respondents requesting to enhance the rate of 3,000/- per 100 cum for such excavation/execution of foundation as per the provisions of the contract. However, the said enhanced rate of the appellant was not approved. After the foundation work was completed, the appellant casted the lean construction work-foundation and raised R.C.C. columns for a height of 2 meters above the ground level and payment against the work done was neither measured by the respondents in the final bill nor the re-enforcement steel were fully measured. Therefore, the appellant signed the final bill under protest. While the matter stood thus, the work was terminated with effect from 24.5.1996 and the contract was illegally rescinded on 2nd August, 1996 when the contract was not in force. The respondents unilaterally and forcibly took possession of all the construction materials, temporary sheds, tools and plants etc. of the appellant including departmental materials without any inventory of such materials. As the dispute arose between the parties, the appellant invoked the jurisdiction of the Superintending Engineer of the circle under Clause 11 of the contract to decide the dispute between the parties. As the Superintending Engineer refused to decide the said dispute, the appellant approached this Court under Section 11 of the Arbitration and Conciliation Act by filing MJC No.131 of 1997 for appointment of arbitrator. On the consent of the parties, arbitrator was appointed to adjudicate the dispute between the parties to the contract. Learned Arbitrator on hearing both the parties passed the award on 26th August, 2003 and the award was in two parts; part (A) contains claims allowed on admission by the respondents and part (B) contains claims allowed on consideration. The same are extracted hereunder. "(A) Claims allowed on admission by the respondents. 2. Cement Concrete in foundation including Shorting, shuttering, dewatering etc. Rs.4,022.00

(3.) R.C.C. 1:2:4 in column, grade beam Rs.41,36.00 5. Cutting, Straightening, bending, welding and jointing if necessary and placing in position etc. of M.S. ? Tor steel etc. Rs.65,314.00 14. Filling in base of foundation trenches with sand and boulders Rs.54,900.00 "(B) Claims allowed on consideration. 1. Excavation of foundation trenches in all kinds of soil including morum etc. Rs.45,000.00