S.C.Ghose, J. - (1.) THIS appeal is directed against the judgment and order dated January 19, 1979 passed by T. K. Busu J. By and under the said judgment and order the learned trial Judge dismissed the application made by the appellant under Ss. 16, 30 and 33 of the Indian Arbitration Act, 1940 inter alia for selling aside of an award dated May I, 1978 made by the arbitrator Col. Gurcharan Singh.
(2.) BY and under a contract dated 28th September 1972 executed within the jurisdiction of this Court, by and between the appellant and the respondent, the respondent agreed to construct for the appellant single man accommodation and messes and certain external services, phase IA (Left Zone) at Binaguri, District Jalpaiguri. The agreed value of the said constructions agreed to be constructed by the respondent was Rupees 1,06,77,167.65 paise. The said contract contained inter alia the following terms:-- "Condition No. 9 -- Suspension of work--"The contractor shall suspend execution of the works or any part or parts thereof whenever called upon in writing by the Garrison , Engineer to do so, and shall not resume work thereon until so directed in writing by the Garrison Engineer. The contractor will be allowed by the GE an extension of time (not less than the period of suspension) for completion of the item or group of items of work for which a separate period of completion is given in the contract and of which the suspended work forms part but no other claims in this respect for compensation or otherwise, howsoever, shall be admitted." "Condition No, 11 -- Time, Delay and Extension-- (A) Time is of the essence of the contract and is specified in the contract documents or in each individual works order. As soon as possible after the contract is let or any substantial works order is placed and before work under it is begun, the GE and the contractor shall agree upon a time and progress chart. The chart shall be prepared in direct relation to the time stated in the contract documents or the Works Order for completion of the individual items thereof and/or the Contract or works order as a whole. It shall indicate the forecast of the dates for commencement and completion of the various trade processes or sections of the work, and shall be amended as may be required by agreement between the GE and the contractor within the limitation of time imposed in the contract documents or Works Order. If the works be delayed:-- (i) by force majcure, or (ii) by reason of abnormally bad weather, or (iii) by reason of serious loss or damage by fire, or (iv) by reason of civil commotion, local combination of workmen, strike or lockout affecting any of the trade employed on the work, or (v) by reason of delay on the part of nominated sub-contractor, or nominated suppliers which the contractor has in the opinion of GE, taken all practicable steps to avoid, or reduce, or (vi) by reason of delay on the part of contractors or tradesmen engaged by Government in executing works not forming part of the contract, or (vii) by reason of any other cause, which in the absolute discretion of the Accepting Officer is beyond contractor's control; then in any such case the officer hereinafter mentioned may make fair and reasonable extension in the completion dates of individual items or groups of items of work for which separate periods of completion are mentioned in the contract documents or works order, as applicable. Upon the happening of any such event causing delay, the contractor shall immediately give notice thereof in writing to G. E. but shall nevertheless use constantly his best endeavour to prevent or make good the delay and shall do all that may reasonably be required to the satisfaction of the G. E to proceed with the Works, extension of time shall be granted as under:-- (a) by G. E. for all Term Contracts; (b) by Accepting Officer of the contract for all other contracts. Extension of time, as granted above, shall be communicated to the contractor by G. E. in writing and shall be final and binding provided that in the case of contracts (other than Term Contracts) accepted by the G. E., in the event of the contractor not agreeing to the extension granted by the G. E. The matter shall be referred to the G. W. E., whose decision shall be final and binding, (B) If the works be delayed:-- (a) by reason of non-availability of Government Stores mentioned in Schedule 'B'; or (b) by reason of non-availability or break down of Govt. Tools and plant mentioned in Schedule 'C'; then in any such event notwithstanding the provisions hereinbefore contained, the G. E., may in his discretion grant such extension of time as may appear reasonable to him and the contractor shall be bound to complete the works within such extended time. In the event of the contractor not agreeing to the extension granted by the Garrison Engineer, the matter shall be referred to the Accepting Ofliccr (or GWE in case of contract accepted by Garrison Engineer) whose decision shall be final and binding. (C) No claim in respect of compensation or otherwise, howsoever, arising, as a result of extension granted under conditions (A) and (B) above shall be admitted, "Condition No. 58 -- Fair Wage- (a) The contractor shall pay not less than the "fair wage" as defined below or the minimum wage fixed under the Minimum Wages Act, whichever is higher to labourers engaged by him on the work. "Fair Wage" means wage whether for time or piece work notified at the time of inviting tenders for the work and where such wages have not been so notified, the wages prescribed by the Chief Engineer for the stations at which the work is done." "Condition 63 -- Variations of prices of Materials incorporated in works consequent on an Act of the Legislature -- If during the progress of the works, the price of any material incorporated in the works is increased by an Act of Legislature, being other than a Sales Tax, and the Contractor shall thereupon necessarily and properly pay in respect of that material (incorporated in the Works) a price which is in excess of the price of that material as prevailing on the date of acceptance of tender or if the price of any material incorporated in the Works as prevailing on the date of acceptance of tender is similarly reduced, the contract sum shall accordingly be varied, provided always that any increase so payable is not, in the opinion of the C. W. E. (whose decision shall be final and binding) attributable to delay in the execution of the Contract within the control of the contractor. The contractor shall, for the purpose of this condition, keep such books of account and other documents as are necessary to show the amount of any increase claimed or any reduction available and shall allow inspection of the same by any duly authorised representative of Government and further shall at the request of the G. E. furnish verified in such a manner as the G. E. may require, any documents as kept and such other information as the G. E. may require. The contractor shall within a reasonable time of his becoming aware of any alteration in the prices of any such material, give notice thereof in writing to the G. E. stating that the same is given pursuant to this condition together with all information relating thereto which he may be in a position to supply." The said contract between the parties contained an arbitration clause in the following terms:-- "Condition No. 70 -- Arbitration-- All disputes, between the parties to the contract (other than those for which the decision of the CWE or any other person is by the contract expressed to be final and binding) shall after written notice by either party to the contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the works or termination or determination of the contract under Conditions Nos. 55 and 57 hereof: Provided that in the event of abandonment of the works or cancellation of the contract under Conditions Nos. 52, 53 or 54 hereof, such reference shall not take place until alternative agreements have been finalised by the Government to get the works completed by or through any other contractor or contractors." "If the arbitrator as appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new arbitrator to act in his place. The arbitrator shall be deemed to have entered on the reference on the date he issued notice to both the parties, fixing the date of hearing. The arbitrator may, from time to time with the consent of the parties, enlarge the time, for making and publishing the award. The arbitrator shall give his award on all matters referred to him and shall indicate his findings, along with the sums awarded, separately on each individual item of dispute. The venue of arbitration shall be such place or places as may be fixed by the arbitrator in his sole discretion. The award of the arbitrator shall be final and binding on both parties to the contract."
(3.) THE respondent undertook the work and completed the same,;