STATE OF BIHAR Vs. GOPAL CHANDRA PALIT

JUDGEMENT

(1.) S.K. Chattopadhyaya, J. 1. This appeal under Section 39(IV) of the Arbitration Act, 1940 (the Act) is directed against the decision of the Subordinate Judge, No. 1, Chaibasa making the Award a rule of the court.

(2.) Before dealing with the contentions raised by the parties, it would be appropriate to portray the factual backgrounds. The parties to this appeal entered into a contract for making certain construction, time limit for completion of the work being sixteen months from the date of commencement of the work. This time limit was the essence of the contract. The respondent undertook to execute the work as per the agreement from 27.9.84. Immediately after commencement of the work the respondent detected that though two erstwhile contractors had been paid their amount in full, they did not complete the two abutments upto the desired height. The matter was reported to the department then and there and on verification the assertion of the respondent was found to be correct. The respondent was directed to complete the construction of the said abutments by raising it upto the desired height. This was, however, ordered to be done outside the agreement. Subsequently under a written order dated 12.9.87 the work of the respondent was stopped by the Department. Certain differences arose between the parties and the dispute, as per the agreement, was referred to the sole Arbitrator, Sri Kedar Nath, retired District & Sessions Judge, Daltonganj. The parties filed their statement of facts and fully participated in the proceeding before the Arbitrator. Ultimately Award was made on 10.9.92 and was filed in the court. The appellant raised several objections against the Award and a suit was, therefore, registered being Title Suit No. 18/92. In the suit the contractor-respondent was described as the plaintiff and the appellant-State of Bihar as the defendant.

(3.) It is not in dispute that no particular dispute/claim was referred to the Arbitrator by the court by its order of appointment and the parties were at liberty to refer their points/claims by their respective statements of claims and counter claims. It is also not controverted that both the parties admitted the documents filed by each of them by waiving formal proof thereof. Both the parties admitted that the work was to be completed within sixteen months from the date of its commencement but the work was stopped under a written order of the authority dated 12.9.87. It was also admitted by the appellant that the respondent had to raise the height of the abutment which was left incomplete by the previous contractors as per the order of the authorities though not specifically provided in the contract. The fact that the payment on this account was accepted by the respondent is also admitted.