Monoranjan Mullick, J. - (1.) This is an application under Section 30 read with Section 33 of the Indian Arbitration Act filed by the Award-holder. The facts are briefly as follows : On 27th January, 1984 the Calcutta Metropolitan Development Authority (hereinafter referred to as C.M.D.A.) issued a N.I.T. No. 4 of 1983-84 under No. 7. On or about 6th February, 1985 C.M.D.A. being the respondent issued a corrigendum relating to balance road work for Park Circus Connector (Eastern Metropolitan Bye-pass) including construction of retaining wall, draft walls drainage work etc. The estimated cost was shown as Rs. 4,98,771.06 p. but the real cost would be about Rs. 98 lakhs. On or about 2nd March, 1984 the petitioner submitted a tender for a total cost of Rs. 46 lakhs which was 7.77% less than the estimated cost. The said tender was accepted by the respondent. By the order dated 28th March, 1984 the respondent issued a work order in the business name of the petitioner and a contract was thereafter signed between the parties,. In terms of the tender condition work to be completed within six months which was to execute on 27th September, 1984. By a letter dated 27th Sept. 1984 the petitioner applied to the Executive Engineer for extension of time at least 90 days to complete the job. No extension was communicated to the petitioner till 5th November, 1984. During this period the petitioner also carried on work with his own materials. The extension of time was subsequently however, granted by 5th November, 1984 upto 12th November, 1984. However, by a letter dated 12th November, 1984 the respondent purported to terminate the contract. Over such illegal termination of contract ultimately in terms of the arbitration agreement, the Chief Executive, C.M.D.A. referred the matter including all dispute and claims which the petitioner might have to the arbitration of the Director (S & D) Sector, C.M.D.A. on the basis of the said arbitration agreement. However, as the previous Arbitrator was not proceeding with the matter with reasonable dispatch the petitioner filed an application for change of Arbitrator before this court and by the order dated 13th July, 1988 this court in Matter No. 1987 of 1988 removed the authority of the appointed Arbitrator and appointed Sri Sambhu Chandra Ghosh, a former Chief Justice of this Court in place and stead of the previous Arbitrator. Sri Sambhu Chandra Ghose made an award on 12th May, 1990.
(2.) The petitioner has in this application under Section 3 read with Section 33 of the Indian Arbitration Act challenged only two partitions of the award. The sum of Rs. 4,98,771.06 p. which has been ordered to be deducted from the claim of the petitioner on the ground that the respondent was entitled to the said amount of penalty being the 10% of the gross value of the tender work. The petitioner has also challenged the award of' Rs. 61,743.26 p. for the value of the excess work done by the petitioner after 27th November, 1984 and has claimed that part of the award may be rectified by enhancing the value of the said excess work to Rs. 7 lakhs. It is, therefore, prayed that the award dated 12th May, 1990 be set aside and/or rectified by deleting the deductions of Rs. 4,98,771.06 p. and by substituting the dues of the petitioner from Rs. 61,743.26 p. to Rs. 7 lakhs for the value of the excess work done by the petitioner after 27th September, 1984.
(3.) The respondent contest this petition contending, inter alia, that the petitioner under the provisions of Section 30 cannot pray for partial setting aside of the award and the application is therefore not maintainable. It is also submitted that the Arbitrator on considering the whole evidence on record and having been satisfied that the imposition of penalty under Clause 2 of the tender agreement being not arbitrable rightly affirmed the imposition of penalty under Clause 2 of the contract and did not commit any illegality whatsoever in deducting the said amount of penalty from the total claim awarded to the petitioner. It is also submitted that the amount awarded for extra work done was on the basis of the evidence produced by the parties before the Arbitrator which are all question of fact which this court cannot interfere when the award of the Arbitrator is based on evidence and this court does not sit in appeal ever the award of the Arbitrator.;