ARINDAM SINHA,J. - (1.) This arbitration petition is for setting aside award dated 3rd November, 2003. Parties to the arbitration had entered into agreement for dredging/excavation of approach channel and basin project of shore based pilot station at Sagar Island. The agreement was pursuant to award-debtor having accepted tender of award-holder, for doing said work as to be completed and handed over in satisfactory condition. Work was to be done within 18 calendar months from date of receipt of work order. Consideration payable was provided in the agreement, which included fixed consideration and rates, for construction of fencing, protection and dredging.
(2.) Two claims of award-holder stood awarded, along with interest. The first claim is for pending bills and the second, for refund of security deposit. Arbitrator found work had been completed. Award-debtor had admitted receipt of bills under first claim awarded. Award-debtor, at material point of time did not raise any objection regarding those bills. The first claim was awarded on bills due, found to be in respect of work actually executed. The second claim, for refund of security deposit, was awarded on Arbitrator finding, the work had been completed. 10 % interest per annum, from 8th February, 2002 (date of first sitting of arbitration) till date of award, was allowed on aggregate award amount. Rest claims of award-holder were rejected as also counter- claims of award-debtor.
(3.) Mr. Mitra, learned senior advocate appeared on behalf of petitioner/award- debtor. He submitted, General Conditions of Contract is part of the contract between parties. He referred to clause 6 therein as terms for payment. All payments made prior to issue of certificate in From G.C.2 shall be treated as mere advances. Respondent/award-holder had not obtained completion certificate in Form G.C.2. He relied on Specifications with Special Conditions, General Issues clause 2.6 to submit, dredging depths were to be maintained at contractor's expense, till date of completion certificate for whole of the work. Extra dredging, due to bank collapse, had to be borne by contractor. There could not have been award made on bills for work done but not completed. Quantum meruit payment is not permissible under the contract. Finding in paragraph 10.5 of impugned award that work was completed, is perverse and patently illegal. The work was not completed prior to 1st July, 2001, on and from which date admittedly contractor had suspended work. Suspension of work can only be of on going work till before completion. He relied on Treitel and Chitty on Contract to submit, where complete performance was obligation on part of contractor, there can be no recovery for partial performance. He cited an English case of Sumpter Vs. Hedges reported in (1898) 1 QB 673, in which it was held that plaintiff could not recover from defendant, in respect of work he had done as upon a quantum meruit, on no evidence of fresh contract to pay for the same when the contract was for the whole.;