STATE OF RAJASTHAN Vs. A.MUTHUSWAMY

JUDGEMENT

(1.) With the consent of counsel for the parties, the present appeal is being heard and decided finally.

(2.) The instant appeal has been preferred under sec. 37 of the Arbitration and Conciliation Act, 1996 against the order dtd. 3/1/2019 passed by learned Additional District Judge No.4, Udaipur in Civil Original Case No.3/2015 (CIS No.2354/2015). Vide judgment dtd. 3/1/2019, the application preferred by the appellants under sec. 34 of the Arbitration and Conciliation Act, 1996 (hereinafter shall be referred to as 'Act of 1996') has been rejected while affirming the findings recorded by the Arbitrator vide award dtd. 21/5/2015.Learned counsel for the appellants has vehemently argued that the learned court below has not properly appreciated the facts in the light of sec. 34 of the Act of 1996 as also the arguments raised therein. She submits that for a considerable period of time the contractor did not complete the work despite being given proper opportunity or extension to complete the work on the site. She fairly submits that on certain occasions, the work was stopped on account of 'A/o Objection Certificates' being not granted to the contractor as the same were not cleared from the Forest Department. She submits that apart from few occasions, the contractor was free to commence and complete the work on the site. She fairly submits that the contractor is not responsible for not performing the work on the site for the periods the department gave in writing to stop the work. It is further contended that it was on record that the contractor was issued letters from time to time to start the work at the site and complete the same in the extended period. She submits that the period of contract was from 1/1/1998 to 31/3/2000. Time was essence of the contract. The contractor was given all reasonable opportunities and extensions to complete the work but the same was not done. In the circumstances, department took recourse to resile the work from the contractor and face the consequences thereof. She further argues that the learned Arbitrator has not correctly recorded the findings on issue No.2 and 4. She submits that except the delay caused in completing the work, no other point was pressed into service in the present case.

(3.) Per contra, learned Senior counsel for the respondent submits that in view of the fact that the contractor was not given due clearance for initiation of the work despite the fact that he time and again approached the department for the same. Solely because the appropriate clearances were not given, the project could not be completed. He further submits that there was no fault on the part of the contractor as the men and machinery remained located at the site but the department failed to issue necessary direction to the contractor to complete the work at the site. He further contends that the findings recorded by the Tribunal on issue Nos.2 and 4 are detailed and speaking and therefore, the application preferred under sec. 34 of the Act, 1996 was rightly rejected by learned court below. The counsel for the respondent further submits that the scope of adjudication under Sec. 34 and 37 of the Act is very limited and therefore, the courts should be slow while interfering with the findings of fact recorded by the Arbitrator as well as learned court below. In support of his contention, the counsel for the respondent relies upon the judgment of the Hon'ble Supreme court in the case of MMTC Ltd. V/s Vedanta Ltd. reported in (2019) 4 Supreme Court Cases, 163.