STATE OF ORISSA Vs. R.N. MISRA

JUDGEMENT

(1.) THIS appeal has been filed by the State of Orissa represented by the Executive Engineer, Ramiala Canal Division. Katnakhyanagar, District -Dhenkanal against the judgment dated 16 -2 -1982 passed by the learned Subordinate Judge. Bhubaneswar in O.S. No. 293 of 1981 -I making the award of the learned Arbitrator a rule of the Court subject to the modification that future interest is to be limited only to the principal claim of the respondent. The respondent was entrusted with certain works under the Ramiala irrigation Project by the Executive Engineer. Ramiala Canal Division under agreement No. 4 F -2 of 1978 -79. As disputes arose between the parties, the Additional Director of Designs, Bhubaneswar was appointed as the Arbitrator to decide the disputes. By his order dt. 20 -11 -1981 the learned Arbitrator gave an award for a sum of Rs. 2,54,048.50 paise to be paid by the appellant to the respondent besides refund of the security deposit and earnest money. The learned Arbitrator also allowed interest at the rate of 10% on the whole amount of the award mentioned above. Thereafter the appellant filed objections against the award and the same were registered as O.S. No. 293 of 1981 -I in the court of the learned Subordinate Judge, Bhubaneswar. On consideration of the respective cases of the parties and after hearing them, the learned Subordinate Judge upheld the award on the ground that it was supported by reasons and that no error apparent on the face of the award had been brought to the notice of the court to justify setting it aside. The learned Subordinate Judge however modified the award to the extent that future interest at the rate of 10% per annum shall be paid only on the principal sum of Rs. 2,23,067/ - and not on the whole amount of the award.

(2.) AS rightly observed by the learned Subordinate Judge, the award of the learned Arbitrator is not supported by reasons and there is no error apparent on the face of it and as such it is not open to this Court to review the same award. The learned Additional Government Advocate appearing on behalf of the appellant has urged that the award and the judgment of the learned Subordinate Judge cannot be upheld insofar as they relate to the claim of the respondent with regard to the cost of extra items of works actually executed. It is submitted that the extra items of works are covered under Clause 11 of the agreement and as indicated in the proviso to the said clause, the matter should have been decided only by the concerned Superintending Engineer and not the learned Arbitrator. In support of this contention, reliance is placed on a decision of the Supreme Court reported in The President, Union of India v. Kalinga Construction Co. (P.) Ltd. wherein it was held : - "Once it was found that under the terms of the contract the order of the Chief Engineer in writing had to be obtained before the work involving additional leads was executed and in the absence of any such written order it was not open to the Court to hold that the appellant - Union of India - was liable for payment of extra leads beyond 10 by applying some principle or rule analogous to estoppel. It is no doubt true that the company had been writing to the Engineering Department in the matter and that the latter did not, for a considerable time, send any reply but the company was debarred from asking for any additional payment in the absence of the Chief Engineer's order in writing. If the arbitrator came to that conclusion it could not be said that there was any error apparent in his award which would justify setting it aside." First of all it is necessary to refer to the proviso to Clause 11 which provides as follows : -

(3.) IN the result, this appeal which has no merit is rejected. The impugned judgment is confirmed. There should be no order as to costs. The cross -objection which has no merit is also rejected. Appeal dismissed.