UNION OF INDIA Vs. SUMAN SUNDAR PATRA

JUDGEMENT

(1.) Mr. Behera, learned advocate, Central Government Counsel led by Mr. Parhi, learned advocate and Assistant Solicitor General appear on behalf of appellants and submit, impugned is judgment dtd. 30/8/2018, whereby three points of challenge to award dtd. 28/4/2014 were rejected. He submits, the three points were challenge to the award on excepted matters, directing refund of Earnest Money Deposit (EMD) and grant of future interest.

(2.) He submits, there can be no dispute regarding award made on matters that were excepted by the contract. In awarding all those items of claim, the arbitrator transgressed terms of the contract and was therefore in violation of mandate in sub-sec. (3) in sec. 28, Arbitration and Conciliation Act, 1996. Since his client, employer had given extension of time to do the work without imposing penalty and respondent did not execute it, same resulted in closure of the contract. There could not have been award on claim for refund of EMD. He submits further, by clause 16 (3) of General Conditions of Contract (GCC) there was prohibition on claim of interest. The arbitrator having granted interest at 15% again went beyond terms of the contract and was in violation of aforesaid mandate by sub-sec. (3) of sec. 28. He submits, on these three counts the Court below erred in appreciating appellants' case. In awarding those claims, there was patent illegality.

(3.) Mr. Jujharsingh, learned advocate appears on behalf of respondent. He supports reasoning given in impugned judgment. He draws attention to paragraph 6 in it to submit, the Court below found that by application dtd. 4/3/2013, made at stage of argument in the reference, appellant had taken the point of some matters had been excepted as excluded from arbitration. He relies on judgment of the Supreme Court in Narayan Prasad Lohia vs Nikunj Kumar Lohia, reported in AIR 2002 SC 1139, paragraph 16. He submits, there was waiver.