STATE OF BIHAR REPRESENTED BY EXECUTIVE ENGINEER R E O WORKS DIVISION MASAURHI Vs. KANTI CONSTRUCTION COMPANY THROUGH ITS PARTNER BAIJNATH SINGH SON OF LATE BANKE BIHARI SINGH

JUDGEMENT

(1.) THIS appeal is directed against the order dated 13.09.2010 passed by the 1st Sub-Ordinate Judge, Patna in Misc. Case No. 11 of 2005 whereby the application under section 34 of The Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) for setting aside the arbitral Award was dismissed. The appellant-State on being aggrieved by the said order has preferred the present appeal.

(2.) THE short relevant facts are that the respondent while carrying out the work at Mashauri-Naubatpur Road to Sahabad Chhata Road pursuant to the agreement no. 7F2 of 1993-94 arrived between the respondent and the concerned Executive Engineer in the Rural Engineering Organization, Government Bihar, Patna a dispute arose. The respondent for redressal of his grievance took the recourse for an appointment of the Arbitrator vide Request Case No. 11 of 2004 along with four other request case filed by him with respect to another four agreements which was separately numbered as per order dated 29.07.2005. The Request Case No. 11 of 2004 was disposed of by appointing a sole arbitrator for deciding the dispute. Both the parties appeared before the Arbitrator. Respondent filed his claims. The Arbitrator upon considering the claim as also the materials on record as well as stand of the State gave a common Award for four agreements and a separate Award for another agreement which was between the respondent and the Rural Engineering Organization. The Arbitrator considering the disputes of the parties with reference to the Request Case No. 11 of 2004 gave his Award to the tune of Rs.91, 717/- vide Award dated 31st January, 2005 (Annexure-C to the Counter Affidavit). The appellant-State being aggrieved by the Award filed an application under section 34 of the Act (Annexure-D to the counter affidavit) for setting aside the Award in the Court of 1st Subordinate Judge, Patna which was registered as Misc. Case No. 11 of 2005. The said miscellaneous case upon hearing was dismissed by the order under appeal.

(3.) LEARNED counsel appearing for the respondent submits that the concerned Executive Engineer of the State used to appear in the arbitration proceeding before the Arbitrator on each and every date and produced the relevant records in opposition of the claim which would appear on perusal of the proceedings of the arbitration i.e. Annexure-E to the counter affidavit. It is further submitted that the order on the request case was passed taking into consideration the arbitration agreement between the parties and the arbitration agreement in question and the clause 23 of the agreement was not deleted. Moreover, if the appellant was aggrieved by the aforesaid order of appointment of the Arbitrator it was open for him to take the recourse of law against the aforesaid order and that having not done, and the appellant appeared in the arbitration proceeding taking the chance of favourable order and since the Award has gone again, the appellant cannot take round and challenge the very appointment of the Arbitrator. With regard to the question of limitation, it was submitted that the aforesaid ground was never taken in the proceeding below i.e. in the petition under section 34 of the Act, and as such, the question of limitation cannot be taken at the appellate stage as a new ground, moreso, the bar of limitation is not apparent from the record. Learned counsel further submits that the Award cannot be set aside except for the grounds mentioned in section 34 of the Act. As such, the contention of the learned counsel for the appellant that the Award deserved to be set aside on the ground of limitation cannot be accepted. It is accordingly submitted that the appeal deserves to be dismissed.