Ronojit Kumar Mitra, J. - (1.) This was an application made under Sections 30 and 33 of the , Arbitration Act, 1940 for setting aside an award dated March 11, 1998. The award had been made by the joint arbitrators, who had been appointed by each of the two parties in terms of the agreement dated July 27, 1984. The prayer in the petition for setting aside the award was restricted to Item Nos. (I). (VI), (VIII), (IX), (X), (XIV), (XV), (XVI), (XIX), (XX), (XXI), (XXII), (XXIII), (XXIV) and (XXV) of the award. Central I Inland Water Transport Corporation Limited, the petitioner in this I application, was the respondent before the arbitrator and Afcons Infrastructure Limited, the respondent in this application, was the claimant before the Arbitrator.
(2.) In pursuance of an agreement between the parties, dated July 27, 1984, the respondent had carried out diverse work of "modernization and development of infrastructure facilities at Rajabagan Dockyard Nos. 3 and 4 and other related works". Disputes and differences arose between the parties and in terms of the agreement the petitioner had referred the matter to the Engineer and then to the joint arbitrators. The parties had each appointed an Arbitrator. The arbitration proceedings had been concluded in the 45th meeting in the reference. It would appear from the award that the joint arbitrators "upon taking all the factors into consideration", made their award, in respect to the claims and counter-claims of the parties which had been referred to the Arbitrators and which covered "all disputes between the two parties".
(3.) It was submitted by Counsel appearing for the petitioner that before referring the matter to the joint arbitrators, in terms of the agreement the respondent had by a letter dated December 4, 1993 required the Consulting Engineering Services (India) Private Limited, hereinafter referred to as "the Engineer", to settle the disputes between the parties which had arisen out of the contract dated July 27, 1984. The disputes related to the outstanding matter in connection with the work which the respondent had alleged to have executed. Decision required by the Engineers had been, on disputes which included Item No. 5 "Security/Retention to be refunded", where the claim was for a sum of Rs. 1,15,040.33p. The respondent however contended, through Counsel, that while Item No. 5(a) related to the agreement, Item Nos. 5(b) and 5(c) were matters concerning a different agreement which was dated December 28, 1989 and was in no way connected with the agreement which the parties had referred to the joint arbitrators. He argued that the award, though was in respect to Claims 5(b) and (c), clearly was beyond the terms of reference, and consequently the joint arbitrator had committed an error of jurisdiction and the award was bad on the face of the records. He submitted that the petitioner, in its counter statement before the joint arbitrators, had in fact pleaded to that effect, and there was no denial by the respondent though, its view was that "learned Arbitrators are requested to settle these two small amounts also in the present arbitration". It was significant, he argued, as would appear from the Minutes of the 28th meeting in the reference held on September 17, 1997 that the joint arbitrators had recorded the submissions of the Advocate for the petitioner, that the two Item Nos. 5(b) and 5(c) of the claim, did not form any part of the agreement dated July 27, 1984 and that it related to a different agreement dated December 28, 1989 which was not in any way included in the reference. With regard to Item No. (XIV) of the award refusing the counter-claim of the petitioner for the refund of site installation charges, according to Counsel for the petitioner, it was quite apparent on the face of the award, that the joint arbitrators had failed to comprehend that there were two kinds of advances, one towards mobilisation and the other towards site installation, and in Item No. (XIV) site installation charges should have been treated as an initial advance, and an award should have been made for the refund of such advance to the petitioner, within the meaning of Clause 60(3) of the general conditions of contract. He contended that accordingly the claims in Item Nos. (XV) and (XVI) should have been awarded in favour of the petitioner. He argued that it was a time bound contract, and the last extension continued till December 1988, and on record civil work had been completed on June 30, 1990, electro mechanical works on September 20, 1991, and miscellaneous items on March 1, 1994. In terms of Clause 47(1) of the general conditions of contract, the petitioner was entitled to liquidated damages for such inordinate delay, it was submitted by Counsel for the petitioner, and that though the joint arbitrators had considered the question of delay, they had failed to make any award in that respect, in favour of the petitioner, and consequently, the award was perverse. It was argued strenuously, by Counsel for the petitioner, that it would be incorrect to allege that the award was in respect to other related works such as 5(b) or 5(c) above because the name of the contract included the words "other related works". He contended, that there was no logic in the argument by Counsel for the respondent that the arbitrator had relied on the quoted portion of the name of the contract and took into account the agreement dated December 28, 1989 and had made an award in respect to additional electrical works. The contention by the respondent that the Arbitrator had disallowed the claim of the petitioner as it had not been made before the Engineers, argued Counsel for the petitioner, was wholly unfounded and baseless, because the Arbitrator had allowed the petitioner's claim in Item Nos. (XVIII) and (XIX) though, those claims had not been placed before the Engineers by the petitioner either. He submitted that these contentions had not been urged before the Arbitrator by the respondent, nor was any allegation made in that respect in their affidavit-in-opposition, before this Court. He cited and relied on the decisions reported in (1) AIR 1997 SC 3503 and (2) AIR 1992 SC 232. According to him, the decisions cited and relied on by the respondent were not applicable in the facts and circumstances of this case.;