EXECUTIVE ENGINEER Vs. H K SAREEN

JUDGEMENT

(1.) Parties to this suit entered into an agreement No 11/1985 for the construction of Administrative Block for Regional Engineering College, Hamirpur (SH : Building portion and internal WS and SI). Before entering into the said agreement, notice inviting tender was issued by the Regional Engineering College Society, Hamirpur In response to the said notice tenders were received by the Society and finally the work was allotted to the defendant. It is in these circumstances that the agreement was entered into between the parties and this work was allotted to the defendant on 27th March, 1987. The total value of the contract was Rs. 66,95,489 and as pep agreement the date of the commencement of the work was 12 -4 -1987 and date of completion was 12 -10 -1988. From the award of Arbitrator it appears that Contractor had started the work on 27 -4 -1987 and Nishans/layout were given to him but the manpower deployed, according to the plaintiff, for excavation of the foundation etc. was negligible and the defendant failed to accelerate the pace of work despite repeated communications addressed to him in this behalf. During the entire period i.e between 27 -4 1987 to 24 -6 -1987 the work carried out was of the value of Rs. 3,000 only and the progress of the work was not in accordance with the terms of agreement. At this stage it may be pointed out that both the parties have admitted the execution of the agreement in question and regarding the dates and other facts referred to here -in -above they are not at variance.

(2.) It appears that the plaintiff wanted to proceed against the defendant interms of the agreement particularly clause (2) thereof, therefore, letters appear to have been written to him It may be worthwhile to mention here that Executive Engineer, Construction Cell, R. E. C, Hamirpur vide his office note dated 23rd September, 1987 levied a compensation of Rs. 6,69,549 upon the Firm, After levying compensation, he submitted the papers to the Superintending Engineer, R E C., Hamirpur for approval This noting is filed by the plaintiff alongwith the affidavit of Shri N. K. Sharma, Executive Engineer, dated 15th March, 1996 and is at page 86 and 87 of the file. At the foot of this note the endorsement made by the Superintending Engineer is to the following effect : "Action taken by the E E is approved. -

(3.) Since the disputes had arisen between the parties, therefore reference was made by the Principal, Regional Engineering College, Hamirpur to the Arbitrator, namely, Sh J. R. Kainth the then Superintending Engineer, Arbitration, H.P.P.W.D, Solan vide office Memo, dated 12th February, 1988 calling upon him to decide and make award regarding claims/counter claims of both the parties, who conducted three hearings and thereafter he resigned. On his resignation, Sh. R P. Malhotra the then Superintending Engineer, Arbitration, H.PPWD, Solan was appointed Arbitrator in terms of office Memo dated 1 -2 -1989, who conducted one hearing and also resigned After that Sh, R. K. Kaura was appointed as Arbitrator by the Principal, R E. C, Hamirpur vide his letter dated 30 -7 -i991 but he did not conducted any hearing and on his resignation Sh. D. N. Handa the then Superintending Engineer, Arbitration. H. P. P. W. D. Solan was appointed as Arbitrator but he also resigned after cop -ducting one hearing, when S S. Juneja was appointed as Arbitrator in terms of letter dated 28th December, 1993 who entered upon reference on 13th January, 1994 and concluded the hearing as well as proceedings in the case on 18th March, 1994. He made his awarded dated 12th May, 1994. From the record it appears that the plaintiff had claimed a sum of Rs. 7,66,861 under Claim No. 1 before the Arbitrator. The defendant while repudiating the claim of the plaintiff before the Arbitrator had made certain counter claims,