MOHD UMMAR NIZAMI Vs. STATE

JUDGEMENT

(1.) TENDERS were invited by the respondents for execution of work of widening of NHIB K.Ms.8, 9, &10 vide NIT No. 16 dated 10.7.1979. The petitioner who is a contractor submitted his tender which was accepted, consequently said work came to be allotted to the petitioner vide allotment letter No. NHIB/Contract/23 -25/CEJ/Camp Srinagar dated 30.4.1980. After completion of the work payment for the work done was made to the contractor through six bills. As per running claim of the petitioner 7th running bill was also prepared by the Section Officer concerned for an amount of Rs. 10, 98,071.56 but the payment on this bill was not made. As the claim of the petitioner in respect of 7th bill was disputed by the respondents he filed a petition u/s 20 of the Arbitration Act raising a claim under different heads for an amount of Rs. 85,87,071.56. Interest @ 24% per annum was also claimed. As the respondents were disputing the right of the petitioner to recover the said amount from them the petitioner prayed for referring the dispute to the arbitrator in terms of clause 58 of the agreement, which was executed between the parties at the time of allotment of work. After entertaining the petition u/s 20 notices were issued to the respondents who did not appear to contest the petition, as such the respondents were set ex -parte and the petition was disposed of vide order of the court dated 25.10.1991 with a direction to the Advisor to the Governor who was exercising powers of Minister Incharge Works Department to nominate an arbitrator for adjudicating upon the dispute raised by the petitioner. However, arbitrator was not nominated and appointed by the Advisor in compliance to the court order, the petitioner filed CMP No. 47/92 seeking appointment of arbitrator through court. That CMP was allowed vide order dated 1.9.1992 and the then Chief Engineer Sheikh Ghulam Mustafa was appointed as Arbitrator. It was made clear in the order that appointment of Sheikh Ghulam Mustafa as arbitrator shall not be treated as ex -officio. Consequent upon his appointment the arbitrator entered upon the reference in respect of the disputes referred by the court. Parties laid their respective claims before the arbitrator. The arbitrator after examining the record and the evidence tendered made and published his award dated 22.7.1994. Out of the amount claimed by the petitioner the arbitrator award a sum of Rs. 10,86,071.56P in favour of the petitioner. Interest @ 12% P.A. with effect from April 1983 on the award amount till payment was also allowed.

(2.) THE award of the arbitrator came to be filed in the court for making it rule of the court, whereupon notices were issued to the parties. The petitioner contractor has not challenged the award and in this behalf it has been prayed that the same be made rule of the court. The respondents however filed an application u/s 30 A.A. for challenging the award inter alia on the ground of misconduct of the arbitrator. Objections to this application were filed by the petitioner -contractor.

(3.) FROM the pleadings of the parties following issues were framed: -