- (1.) Under a contract entered into by and between the appellant and the respondent, the respondent undertook construction of bridge-cum-fall at Nunda Khera Scape at the estimated cost of Rs. 37.2 lakhs. While the work was in progress, the work area was flooded in the night of August 25 and 26, 1991.
(2.) The respondent-contractor herein filed a claim on account of loss sustained by him due to flooding of the work area. Ultimately, the matter was referred to an arbitrator. The arbitrator gave an award for payment of a sum of Rs. 12,55,365/- together with interest at the rate of 18 per cent. from 1-11-1991 till the date of the award and 6 per cent. thereafter. The respondent filed the award for being made rule of the Court. The appellant herein filed a petition, inter alia, on the ground that the arbitrator has misconducted the proceedings, inasmuch as the force majeure contained in Cl. 47 disentitled the respondent from making any claim which was on account of unprecedented rain. The said objection was rejected and the award was made rule of the Court. The appellant thereafter filed a first appeal from order before the High Court and the same was dismissed. It is against the said judgment, the appellant is in appeal before us.
(3.) Learned counsel appearing for the appellant reiterated his argument raised before the High Court. In fact, his argument based on force majeure is that because of unprecedented rain the liability of loss cannot be thrust upon the appellant. We do not find any merit in this contention. Clause 47 of the agreement runs as under : "Neither party shall be liable to the other for any loss or damage occasioned by or arising out of act of God, such as unprecedented flood, volcanic eruption, earthquake or other convulsion of nature and other acts such as but not restricted to general strikes, invasion, the act of foreign countries; hostilities or warlike operations before or after declaration of war, rebellion, military or usurped power which prevent performance of the contract and which could not have been foreseen or avoided by a prudent person." A perusal of Cl. 47 reproduced above shows that it protected the State from liability and damage occasioned by unprecedented flood which could not have been foreseen or avoided as a prudent person. The appellant herein did not lead any evidence before the arbitrator that the rain as a result of which the loss was sustained by the respondent was unprecedented and in fact it was an act of God. In absence of such an evidence, the arbitrator as well as the High Court has recorded a finding of fact that the flood which has caused loss to the respondent was not due to the unprecedented rain and, therefore, Cl. 47 of the agreement was not attracted.;