SECRETARYWORKS DEPARTMENTGOVT OF ORISSA Vs. GOVINDA CHOUDHURY

JUDGEMENT

(1.) THE Secretary of the Works Department and the concerned Executive Engineer have carried this appeal under Section 39 of the Arbitration Act (hereafter referred to as the 'Act') challenging the decision of the learned Subordinate Judge of Berhampur by which, in exercise of powers under Section 17 of the Act, he has made the award a rule of the Court,

(2.) THE respondent entered into an agreement with the Executive Engineer, appellant No. 2, for widening and strengthening the single lane section to two lanes of N. H. No. 5 from Mile 642/5 to Mile 649/7 + 80--Job No. 164--R. S. 5- Reach No. II from Mile 645/0 to Mile 649/7 + 80. Tender for this work had been invited on 18-7-72. THE respondent had given his tender for Rs. 6,76,679/ against the estimated value of the work of Rs. 3,25,100/-. THE tender was negotiated and, finally the respondent agreed to undertake the work for a sum of Rs. 5,68,392/-. On 13-1-73, the Executive Engineer intimated acceptance and that also was treated as the written order to commence the work. Formal contract in the F-2 form was executed on 31-1-73. THE work was stipulated to be completed by 13-10-73. On 16-1-73, the contractor requested the Department for supply of detailed work order which was supplied on 19-1-73. THE contractor pointed out to the Executive Engineer that stacking place had not been provided, and as the owners of the roadside lands were not permitting stacking, collection of material was hampered. THE contractor requested for water tanks and road rollers and other materials like tar boilers and mixers. By August, 1973, the contractor informed the Executive Engineer that he was not in a position to continue the work beyond 13-10-73 and requested that the work already done may be measured, final bill prepared and he may be paid the dues and the contract may be taken as closed. Alternately, he claimed that if the work was to be done and extension was to be granted for two more years beyond 13-10-73, he should be given 30 per cent enhancement of the contracted rate, Since the Executive Engineer insisted that the work should be done but was not prepared to pay any additional remuneration, the contractor continued the work but maintained that dispute had arisen. By 13-10-73 the contractor had been paid a sum of Rs. 1,20,510.12 Paise under five running bills. Beyond that date, further amounts were paid under ten more running bills and the 16th running bill had been prepared but the amount found thereunder said to be Rs. 41,935.55 Paise was not paid. THE contractor raised disputes and, invoked the arbitration clause and asked for appointment of an Arbitrator. Shri P.L. Dandapat was appointed as Arbitrator by the Chief Engineer. His authority was, however, revoked by the learned Subordinate Judge in M. J. C. No. 235 of 1979 and Sri Justice B.K. Patra who retired as Acting Chief Justice of this Court was appointed Arbitrator. THE claimant laid claim under four different parts marked as A, B, C and D. His claims under parts A, B and, C amounted to Rs. 13,20,452.70 Paise and the claim under part D relating to interest amounted to Rs. 2,50,886.71 Paise. THE total claim under the four parts, therefore, came to Rs. 15,71,338.71 Paise. In the counter, the claim was denied. It was submitted that the contract amount had been negotiated at 74 per cent higher than the estimated amount. It was maintained relying upon the terms of the contract that the claimant was not entitled to the amounts asked for under the various heads. It was pleaded that though some money was due under the 16th running bill, since there was a counter claim of the Department, the money was withheld for the purpose of adjustment. It was conceded that the contractor had a security deposit of Rs. 28,180/- and earnest money of Rs. 11,357/-with the Department but these had also been withheld for adjustment towards the counter claim of the Department. Liability to pay interest was disputed. THE Department raised a counter claim of Rs. 1,19,525.72 Paise. THE claimant filed a rejoinder before the Arbitrator.

(3.) AS I have already found, out, it is a non-reasoned award and since there is no challenge on the ground of the proceeding having been misconducted or alleging any misconduct against the Arbitrator, the challenge raised is also beyond the limit available in law,