9911796707
TMI Blog2003 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for a total sum of Rs. 23,59,534.72 comprising 23 claims whereas the claim of the appellant herein amounted to Rs. 90,58,167.42 comprising 8 claims. 2. The sole arbitrator awarded a sum of Rs. 14,31,463 in favour of the first respondent and a sum of Rs. 33,95,000 in favour of the appellant herein. The award was filed in the District Court of Nilgiris. 3. Original Petition No. 29 of 1986 was filed by the respondent No. 1 herein under sections 15, 16, 30 and 32 of the Arbitration Act praying to very modify or set aside to claim No. 1 under 'B' Claim of the Government in Award dated 6-2-1986 and confirm the award in claim 'q' of the contractor made including the interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 appropriate the proceeds towards any losses. Curiously enough under claim No. VI the Arbitrator has passed an award stating that the materials should be returned to the contractor. The approximate costs of the materials has been given as Rs. 3,71,000 by the contractor. Once again, it has to be stated that if the sole Arbitrator has come to the conclusion that the default was on the part of the contractor, he is not justified in directing the Union of India to hand over the materials. Since he has come to the conclusion that the Union of India is responsible for the breach of contract, the sole arbitrator has directed the Union of India to return the materials as the Union of India cannot take recours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. 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 the District Judge had no jurisdiction to analyse the materials on records as if it has an appellate jurisdiction over the award of the arbitrate. The learned counsel would contend that the jurisdiction of the High Court in setting aside an award being limited, the impugned judgments cannot be sustained. In support of the said contention, strong reliance has been placed on Sudarsan Trading Co. v. Government of Kerala (1989) 2 SCC 38. 14. Mr. M.N. Rao, the learned senior counsel appearing on behalf of the respondent, per contra, would submit that a finding of fact has been arrived at to the effect that the award of the arbitrator was inconsistent. The learned counsel would submit that while considering the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purchased and/or the labour provided or required to be provided by the Government as also the cost of the Contractor's materials used with an addition of such percentage to cover superintendence and establishment charges as may be decided by the C.W.E., whose decision shall be final and binding." The said clause could, thus, be invoked only on default on the part of the contractor and not otherwise. 18. Apart from the findings of the District Judge, as noticed hereinbefore, the High Court also came to conclusion that the contract could not have been terminated after the date of completion of work holding : ". . . Misconduct as defined under section 30 is not a moral lapse. If the Arbitrator on the face of the award arrives at an inconsis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 breaches of the terms of contract which was ex facie unsustainable being wholly inconsistent. Clause 54 of the contract could be invoked only when the first respondent committed breach of the terms of the contract. An action in terms thereof could be taken recourse to in its entirety or not at all. If one part of the award is inconsistent with the other and furthermore if in determining the disputes between the parties the arbitrator failed to take into consideration the relevant facts or based his decision on irrelevant factors not germane therefor; the arbitrator must be held to have committed a legal misconduct. 21. In Bharat Coking Coal Ltd. v. Annapurna Construction (Civil Appeal Nos. 5647-48 of 1997) disposed of on 29th August, 2003 this Court notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 in making the award. It is seen that claims 11 and 12 for damages and loss of profit are founded on the breach of contract and section 73 encompasses both the claims as damages. The umpire, it is held by the High Court, awarded mechanically, different amounts on each claim. He also totally failed to consider the counter-claim on the specious plea that it is belated counter-statement. These facts would show, not only the state of mind of the umpire but also non-application of the mind, as is demonstrable from the above facts. It would also show that he did not act in a judicious manner objectively and dispassionately which would go to the root of the competence of the arbitrator to decide the disputes." 24. In Dandasi Sahu's case (supra) this Court held that the award suffering from non-application of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator. See the observations of this Court in MCD v. Jagan Nath Ashok Kumar [1987] 4 SCC 497. (p. 53) 26. In that case the Court was concerned with the first issue and not the second one wherewith we are concerned herein. In the fact situation obtaining therein the court distinguished a large number of authorities placed before it holding : ". . . But, in the instant case the court had examined the different claims not to find out whether these claims were within the disputes referable to the arbitrator, but to find out w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the respondent was upheld. The Court observed : "'We are therefore of opinion that so long as the order in the appellant's Appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.'" (p. 148) 31. As the appellant failed to get that part of the award which was made by the arbitrator in favour of the first respondent, set aside, the basic conclusion of the High Court cannot be faulted. The Court upon setting aside the whole award could have remitted back the matter to the arbitrator in terms of section 16 of the Act or could have appointed another a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
