TMI Blog2003 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... n entered into a contract for construction of an auditorium complex at Willington Nilgiris for a sum of Rs. 64,79,982.95. The work commenced on 16-3-1979 and was to be completed on 15-3-1981. However, there had been amendment to the said agreement owing to increase in the scope of work. An extra time of six months was also given to the contractor in terms of the said amendment. The time for completion of the contract was extended from 16-9-1981 to 30-6-1982 and 1-7-1982 to 31-12-1982. The contract amount was also increased, because of the aforementioned amendment therein owing to increase in the scope of work, to Rs. 85.10 lakhs. Although the period of contract was over and the appellant did not grant any further extension, the same was purportedly terminated by the appellant herein on 28-2-1983, i.e., after the due date for completion of work, namely, 31-12-1982. Disputes and differences having arisen, the arbitration agreement was invoked by the Respondent No. 1 and the claims and counter- claims of the parties were referred to one Brigadier M.M.L. Sharma who was appointed by the Engineer-in-Chief of the appellant. Before the arbitrator the first respondent submitted a claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to escalation in prices of materials and men at 25% of the work done at the contract rates, loss sustained due to under-utilisation of cantering and shuttering materials, loss sustained due to under-utilization, compensation for loss sustained on overheads due to prolongation of work, the impugned award cannot be sustained. 8. The learned District Judge furthermore laid emphasis on the claim towards extra expenditure incurred in dismantling of work done due to delays in decisions wherefor a sum of Rs. 12,500 was awarded stating : ". . . Therefore it is clear that there was a delay on the part of the department in taking decisions. Because of the delay in taking decisions, the Arbitrator has awarded the amount for delay solely on the part of the contract. I failed to understand why the sole arbitrator should have awarded Rs. 12,500 under claim No. V( a ) of the contractor." Referring to clause 54 of the Contract, the District Judge said : "Therefore condition 54 makes it abundantly clear that if there was any default on the part of the contractor the Union of India has got every right to impound the materials of the contractor, and at any time sell the materials and ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals were dismissed. 11. It, however, appears that the appellants herein also filed S.L.P. (Civil) . . . . 8317-8318/97 arising out of the judgment and order dated 6-1-1997 in Appeal Nos. 242/95 and 243 of 1995 of the High Court of Madras questioning the award made in favour of the first respondent herein. The same was dismissed by this Court by an Order dated 24-11-1997. 12. Mr. N.N. Goswami, the learned senior counsel appearing on behalf of the appellant would submit that the High Court as also the District Judge committed a manifest error in setting aside the award made by the arbitrator in favour of the appellant insofar as it failed to take into consideration that the award was a non-speaking one. 13. The learned counsel would contend that the appellant could be blamed for making delay in the matter and completion of job till 1982 but no finding has been arrived at nor could be arrived at on the basis of materials on records that thereafter it was at fault. No material has been shown in the impugned judgments which support the views taken by the courts below that the appellant was responsible for the delay caused beyond 31-12-1982. Mr. Goswami would urge that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, work order and items of work, with individual dates for completion, and clear the site on or before the date of completion". Thus, the failure must be on the part of the contractors and not by reason of acts of omissions and commissions of the appellant herein. 17. The following was furthermore contained in the said clause : "The Government shall also be at liberty to use the materials, tackle, machinery and other stores on Site of the Contractor as they think proper in completing the work and the Contractor will be allowed the necessary credit. The value of the materials and stores and the amount of credit to be allowed for tackle and machinery belonging to the Contractor and used by the Government in completing the work shall be assessed by the G.E. and the amount so assessed shall be final and binding. In case the Government completes or decides to complete the works or any part thereof under the provision of this condition, the cost of such completion to be taken into account in determining the excess cost to be charged to the contractor under the condition shall consist of the cost or estimated cost (as certified by G.E.) of materials purchased or required to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on account of the delay said to have been committed by the contractor, is inconsistent with the award granted in favour of the contractor to get back the materials or value thereof from the Government. When the order of the Arbitrator is inconsistent, it amounts to a misconduct. Therefore, the learned District Judge has rightly set aside the claim No. 1 under B claim of the Government and I am of the opinion that it is not a matter to be interfered with this Court." 19. It is not the case of the appellant that the contractor was allowed to work after 31-12-1982 on grant of further extension for the completion of the work. The rights and obligations of the parties were, thus, required to be considered as on the said date and not thereafter. The fact that there had been delay of 1654 days on the part of the appellant in accepting the designs and there had been an amendment of the Schedule of the work stands admitted. 20. The question as to whether one party or the other was responsible for delay in causing completion of the contract job, thus, squarely fell for consideration before the arbitrator. The arbitrator could not have arrived at a finding that both committed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameter of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the records." 22. It was held that if the arbitrator has committed a jurisdictional error, the court can intervene. This Court in Bharat Coking Coal Ltd. s case ( supra ) noticed its earlier decision in K.P. Poulose v. State of Kerala (1975) 2 SCC 236 wherein it was observed that the case of legal misconduct would be complete if the arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring the very material documents which throw abundant light on the controversy to help a just and fair decision. 23. In Union of India v. Jain Associates [1994] 4 SCC 665, this Court upon following K.P. Poulose s case ( supra ) and Dandasi Sahu s case ( supra ) held: "8. The question, therefore, is whether the umpire had committed misconduct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes as to the jurisdiction of the arbitrator and the dispute as to in what way that jurisdiction should be exercised, this Court opined : "29. The next question on this aspect which requires consideration is that only in a speaking award the Court can look into the reasoning of the award. It is not open, to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. See the observations of this Court in Hindustan Steel Works Construction Ltd. v. C. Rajasekhar Rao [1987] 4 SCC 93. In the instant case the arbitrator has merely set out the claims and given the history of the claims and then awarded certain amount. He has not spoken his mind indicating why he has done what he has done; he has narrated only how he came to make the award. In absence of any reasons for making the award, it is not open to the Court to interfere with the award. Furthermore, in any event, reasonableness of the reasons given by the arbitrator, cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the Court questions and considers. If the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the appellant against the award of the arbitrator made in favour of the first respondent herein has been dismissed. 30. In Premier Tyres Limited v. Kerala State Road Transport Corpn. 1993 Supp. (2) SCC 146 this Court held : ". . . The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-filing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from. 5. Mention may be made of a Constitution Bench decision in Badri Narayan Singh v. Kamdeo Prasad Singh AIR 1962 SC 338. In an election petition filed by the respondent a declaration was sought to declare the election of appellant as invalid and to declare the respondent as the elected candidate. The Tribunal granted first relief only. Both appellant and respondent filed appeals in the High Court. The appellant s appeal was dismissed but that of respondent was allowed. The appellant challenged the order passed in favour of respondent in his appeal. It was dismissed and preliminary objection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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