- (1.) THESE appeals are filed against the common judgment dated 15. 10. 1999 passed by the High Court of Orissa in Misc. Appeal no. 296/1998 filed by the respondents and Misc. Appeal No. 198/1998 and civil Revision No. 109/1998 filed by the appellant.
(2.) THE appellant is stated to be legal heir and successor in interest of n. C. Budhraja (hereinafter referred to as the contractor ). M/s. Orissa Mining corporation Ltd. (for short OMC or respondent) entered into an agreement dated 16. 9. 1967 (Agreement No. 30/f-2) for removal of over-burden at kaliapani (Cuttack District) by excavation in all kinds of soil (including stoney earth and gravel mixed with boulders), and depositing/disposing of the same, as directed. The maximum lift was 6m including initial lift of one metre. The order to commence work was issued on 23. 9. 1967. Parties also entered into three supplementary agreements in regard to the said contract no. 30/f-2, on 2. 8. 1969, 7. 3. 1970 and 10. 2. 1972. [note : OMC had also entered into other contracts with the contractor including contract dated 22. 2. 1968 (Contract No. 2/f/2) for raising Chrome Ore by open excavation from the said mining area. We are not concerned with those contracts in these appeals]. The main agreement enumerated two items of work in its schedule. The first, second, and third supplementary agreements enumerated respectively eight items, one item and four items in their respective schedules. The work was completed by the contractor on 15. 6. 1975. The final bill in respect of the work was prepared by OMC on 21. 10. 1976. It was revised in March-April 1977 by OMC. The final Bill It showed the total value of the work done (under several items in the schedule to main and three supplementary agreements) as Rs. 1,49,190,76. 74. The contractor countersigned the said bill on 14. 4. 1977 under protest, but, however, certified and confirmed that the measurements shown therein were correct. According to the contractor, having regard to the zig-zag route by which the over burden had to be carried, the actual lead was much longer and actual lift was much higher than what were stipulated in the agreement. He contended that the amounts shown as due for the work done was as per contract rates which was for removing overburden to the extent of lift and lead provided in the contract schedules; and at several places, he had to cut and remove the over-burden beyond the extent of lift and lead provided in the contract, and he should be paid for such extra leads and lifts. He claimed to have executed certain additional works not provided in the contract schedules, on the directions of OMC. He therefore represented that the matter may be examined and enquired into for determination of proper amounts due. In view of the several representations made by the contractor in respect of the contract no. 30/f-2 as also other contracts, OMC sent the following letter dated 28. 10. 1978 to the contractor :- "re : Settlement of pending claims. You had called on Chairman, OMC, recently and apprised him of the dues receivable by you in respect of certain long pending matters such as mine benches work and raising at Kaliapani Quarry-I. In the matter of Kaliapani it has been decided to constitute a committee which will go separately into your claims and other facts, in which connection you are requested to give all possible help and assistance, so that your dues, if any, will be ascertainable. In regard to other pending matters, you had indicated yourself that you will give the details of claims and payment received by you. This may be given within a day or two so as to enable OMC to settle up the above at the earliest. "
(3.) THE contractor sent a reply dated 16. 11. 1978 enclosing therewith a statement quantifying his claims relating to contract no. 30f-2 (subject matter of these appeals) as also another contract (no. 2f-2 ). A Committee was constituted by OMC to scrutinize and recommend on the admissibility of the claims made by the contractor in regard to Agreement No. 30/f-2 and agreement No. 2/f-2. Several meetings were held by the said Committee and the claims of the contractor aggregating to Rs. 50,15,820 in regard to contract no. 30. F2 were considered. Ultimately the Committee submitted a final report dated 7. 12. 1979 expressing the view that the contractor could be paid only a sum of Rs. 3,52,916/- in regard to his claims in respect of the two contracts. The contractor, thereafter, wrote a letter dated 29. 2. 1980 stating that he had come to know that the Committee had submitted its final report and requested for a copy of the report and for payments of the amounts due. OMC sent a reply dated 4. 3. 1980 stating that the claims were not accepted yet but however agreed to release a sum of Rs. 3. 5 lakhs and released the said sum on that day. The contractor sent a notice dated 4. 6. 1980 invoking the Arbitration agreement (Clause 23) in respect of pending claims relating to Contract No. 30f-2 and two other contracts. He suggested a panel of names and requested omc to appoint one of them as Arbitrator. Immediately, thereafter, the contractor filed Misc. Case No. 306/80 in regard to the contract in the Court of the Sub-Judge, Bhubaneswar, under section 8 (2) of Arbitration Act, 1940 ('act' for short) for appointment of an Arbitrator. The court allowed the said petition by order dated 6. 10. 1980 appointing Mr. Justice Balakrishna Patro, a retired Judge of the Orissa High Court as Arbitrator by consent. On 16. 12. 1982, an application was made by the present appellant under Order 22 Rule 3 CPC claiming to be the son of legatee of the contractor and for substituting him in place of the deceased N. C. Budhraja, as his legal heir. The said application was allowed by the court on 15. 11. 1985. In the meanwhile, Arbitration Act, 1940 ('act' for short) was amended by the arbitration (Orissa Amendment) Act, 1984, inserting section 41a providing for constitution of and reference to the Arbitration Tribunal. By Notification dated 3. 5. 1986, (amended by Memo dated 23. 6. 1986) the State Government constituted a one Member Special Arbitral Tribunal with Justice N. K. Das as Arbitral Tribunal to settle the disputes between the contractor and OMC in regard to contract no. 30/f-2.;