Rajendra Babu, J. - (1.) An agreement was entered into between the appellant and the respondent for supply of electrical energy and by virtue of Clause 1 of the agreement, the supply of electrical energy shall be "in form of a three phase alternating current at a pressure of approximately 400 Volts between phases, a frequency of approximately 80 cycles per second and a power not exceeding 744.12 KVA and the supply shall be available continously during the 24 hours of each day and throughout the whole period of this agreement, provided always that the supplier shall not be respon-sible for damages or otherwise on account of accidental interruption of supply or stoppage or deficiency of energy caused by any order or direction issued by the Government of Uttar Pradesh or resulting from fire, flood, tempest or any accident or from any strike or lock-out of workman or from any other cause beyond the control of the supplier, but the supplier shall make every effort to restore the supply as soon as possible." On the ground that disputes arose between the appellant and the respondent, the matter was referred to the arbitration as provided in the agreement. The respondent in the claim statement made various claims for refund of the amounts paid under various bills and for various losses suffered on account of various acts of commission and omission of the appellant, details of which are set out therein. By their written statement the appellant refuted the various claims of the respondent.
(2.) On April 6, 1990 the arbitrators made an award for a sum of Rs. 1,74,338,98 by way of refund, while in regard to losses suffered on account of interruption in the power supply as a result of the negligence and acts of omission and commission by the appellant a sum of Rs. 24,00,000 was awarded with interest at 12% with effect from 12-11-1986 upto the date of the award and interest @ 6% per annum from the date of the award till the date of payment. In the Court of the Civil Judge the award was filed. Over-ruling the objections of the appellant, the Civil Judge made a decree in terms of the award against which an appeal was preferred to the High Court and which appeal having been dismissed, this appeal by special leave is filed.
(3.) Shri Ranjit Kumar, the learned Senior Advocate appearing for the appellant, submitted that the award made by the arbitrators is not within the scope of the agreement entered into between the parties inasmuch as the claim for damages would arise except in the circumstances arising in the proviso to Clause 1 of the terms of agreement, to which we have adverted to at the very outset. Damages would not arise on account of interruptions, stoppage and deficiency caused by (i) accident, or (ii) by any order or direction issued by the Government of Uttar Pradesh, or (iii) resulting from fire, flood, tempest or any accident or from any strike or lock-out of workman or from any other cause beyond the control of the supplier. Thus the principal contention addresed before us is that there is a guarantee of supply of electricity for 24 hours of a day but under the circumstances set out in the proviso supply could be interrupted without liability of paying damages and this aspect was not considered by the arbitrators. When this point was raised before the High Court, the High Court noticed the finding of the arbitrators that all logbooks were not made available and even where they were made available by the appellant were not complete and even did not give any reasons and, where they contained reasons, the same were not tenable. While recording findings in respect of issues Nos. 1and 2 after assessing the evidence, the arbitrators came to this conclusion.;