TMI Blog1989 (1) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... t consisted of two phases. The date of commencement of both the phases was 10th March, 1979: the date of completion of phase-l was 9th June, 1980 and for phase-Il 9th November, 1980. The dispute arose about the handing over of the site. According to the appellant, the site was not handed over to him as agreed upon and therefore, the work could not either be commenced or completed as stipulated. He, therefore, accused the respondent of obstructionist tactics also. According to the respondent, however, the claims put forward by the appellant were imaginary excuses to gain time and that he put forward various demands for extension of time and for payment of compensation to which he was not entitled. Clause 70 of the general conditions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to function as arbitrator for it was he who had terminated the contract when he was officiating as the Chief Engineer of Sought West Zone. Aggrieved by this appointment, he filed a suit in the Court of Subordinate Judge, Cochin, seeking leave to revoke the authority of the appointed arbitrator under section 5 of the Arbitration Act. (hereinafter referred to as 'the Act'), and for appointment of another person as arbitrator under section 12 of the Act. It is not necessary to set out the various stages of litigation thereafter. Ultimately, the matter came to this Court and by an order passed by this Court on 25th August, 1987 in Civil Appeal No. 2632/87, it was observed as follows :-- Having regard to the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials lying at site and taken over by the Department as well as for the value of machinery, tools and plants lying over the site and taken over by Department. 7,27,095.01 3. On account of losses caused due to added and infructuous expenditure on overheads, establishments, and supervision during the extended period of contract upto 3.12.81, the date of termination. 1,28,864.00 4. On account of losses caused by way of gains prevented due to unlawful repudiation of the contract by the Department and the consequent termination of the contract by the contractor. 1,04,424.58 5. (a) Release of Bank Guarantee for ₹ 1,25.000 (Bank Guarantee No. G/19/80 dated 28.4.80 issued by the State Bank of India, Willingdon Island, Conchin-3). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1940. III. The respondent is directed to pay to the Claimant by way of cost ₹ 17,500 to- wards Arbitrator's remuneration and ₹ 10,000 towards Advocates' fees and cost. IV. The respondent is directed to suffer their cost. V. The counter claims preferred by the Re- spondent against the Claimant are disallowed. A petition was filed on behalf of the respondent, where-in it was stated as follows: Regarding petitioner's claim No. 1, in the absence of any escalation clause, it is not permissible to the Arbitrator to grant any escalation price as sought by the petitioner. On the other hand, if the work is not completed within the specified time, he has got right to ask for extension of time. Failure to gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ravelled beyond his jurisdiction in awarding the escalation cost and charges. It is difficult to accept this objection for reason more than one. It is well-settled that an award can only be set aside under section 30 of the Act, which enjoins that an award of an arbitrator/umpire can be set aside, inter alia, if he has misconducted himself or the proceeding. Adjudicating upon a matter which is not the subject-matter of adjudication, is a legal misconduct for the arbitrator. The dispute that was referred to the arbitrator was, as to who is responsible for the delay, what are the repercussions of the delay in completion of the building and how to apportion the consequences of the responsibility. In the objections filed on behalf of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to ask for extension of time, and he could claim difference in price. This is precisely what he has done and has obtained a portion of the claim in the award. It was submitted on behalf of the Union of India that failure to complete the contract was not the case. Hence, there was no substance in the objections raised. Furthermore, in the objections raised, it must be within the time provided for the application under section 30 i.e., 30 days during which the objection was not specifically taken, we are of the opinion that there is no substance in this objection sought to be raised in opposition to the award. Once it was found that the arbitrator had jurisdiction to find that there was delay in execution of the contract due to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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