Decided on February 11,2003



Abdul Gafoor J. - (1.) With respect to a contract for construction of buildings there was bilateral dispute between the appellant, the awarder and the respondent / contractor. Nineteen claims were raised by the latter and six claims by the former. The appeal is with respect to claim No. 4 raised by the appellant before the Arbitrator. A total claim of Rs. 39,84,187 was raised. Award is only for Rs. 66,794. The main dispute in this case is with respect to sub item Nos. 1, 2 and 3 under claim No. 4. It was in respect of sub item No. 1 that the aforesaid amount was awarded. On claims under sub item Nos. 2 and 3, the Arbitrator did not award any amount at all. A prior intimation was required to raise claim. The Arbitrator found that no prior intimation was given to the contractor. Therefore the claim was barred. The finding of the Arbitrator on that ground is well justified going by the date of reference of arbitration in August 1998 and raising of claim in January 2000. There was no prior intimation as well. Naturally finding on sub item Nos. 2 and 3 are perfectly justified.
(2.) Sub item No. 1 under claim No. 4 raised by the appellant was in respect of non return of excess quantity of material, namely cement. Much dispute is with reference to the cost of the cement. Total price could have been levied in terms of clause 10 of the contract in respect of non returned excess material. There was a total issue of 60,572 bags of cement. Actual utilisation was to the extent of 58,079 bags resulting in over issue of 2493 bags of cement. Nothing was awarded as per the findings in para 47.5 of the award. This is illegal, appellant contends.
(3.) Reading of para 47.7 discloses that the Arbitrator has come to certain findings based on certain materials placed before him. Such findings, contained in an Award can be called in question in a Court only on the ground available under S.34 of Arbitration and Conciliation Act, 1996 as the arbitration in question is in terms of the said Act. Reliance is placed on S.34(2)(a)(iv), which reads as follows: "(2) An arbitral award may be set aside by the court only if - (a) the party making the application furnished proof that - (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.";

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