ASHOKE KUMAR DASADHIKARI, J. - (1.) THIS is an application under Section 34 of the Arbitration and Conciliation Act of 1996, filed by the petitioner company challenging the award dated January 28, 2008 passed by the sole Arbitrator. The case made out by the petitioner in the instant petition is that, pursuant to an invitation to tender by the respondent for construction of building for Asansol Fire Station, the petitioner submitted its tender on 7th November, 1973. By a letter of acceptance dated 31st January, 1974 the respondent communicated the claimant that he has become successful to get the work. A formal agreement was entered into by and between the parties and the said agreement was numbered as contract No. 9 of 1974. It was contended on behalf of the petitioners that due to reasons attributable to the respondent the petitioner had to suspend the work and he was put to loss on various accounts, which was communicated by petitioner by his letter dated 11th June, 1975. The petitioner also raised his claim in that regard. The work was completed by the petitioner on 30th June, 1997 in place of stipulated date of completion by 30th January, 1975. Although, the work was required to be completed by 12 months, the actual time taken for completion of the work is 41 months. After completion of the entire work on 30th June, 1997, the respondent was persuaded by the petitioner for preparation and payment of the final Bill. However, after expiry of more than 8 months since completion of the work, the respondent prepared one purported final Bill which did not include all the sums payable to the petitioner. The petitioner received the final Bill payment with objection since his claims were not accepted by the respondents. In spite of several letters and reminders the respondent authorities did not pay the amount as claimed by the petitioner. The petitioner by its letter to the Chief Engineer, PWD requested to enter upon a reference for adjudication of the claims/disputes as raised by him. The said Chief Engineer was also requested to appoint another Arbitrator in his place and stead in case he is unwilling to Act as Arbitrator. In spite of all request and letters issued by the petitioner the respondents did not take any steps and the petitioner caused their solicitor and advocate to serve the reminder by letter dated 8th June, 1988 to the Chief Engineer, public works department Government of West Bengal for entering upon the disputes that has arisen between the parties. Thereafter another letter was issued by the solicitor of the petitioner which was also not replied, nor any Arbitrator was appointed.
(2.) BY letter dated 4th August, 1998 the solicitor and advocate of the petitioner appointed Mr. G.C. Law, Bar-at-Law, Bar Library Club, Calcutta, High Court, the Arbitrator to adjudicate the dispute and in that letter the Chief Engineer was requested to concur in the appointment of Mr. Law as arbitrator within 15 days from the date of receipt of the said letter. BY a subsequent letter dated 6th August, 1998, the solicitor and advocate on behalf of the petitioner informed Mr. G.C. Law that he has been appointed as arbitrator in the matter. G.C. Law enter upon the reference and directed the petitioner to file their statement claims. Said Shri G.C. Law made and published the award thereafter, but the award was set aside by the High Court pursuant to an application filed by State of West Bengal to that effect. In the said letter the Hon'ble High Court directed that the Arbitrator be appointed for adjudication of disputes and differences that have arisen between the parties. As the respondent did not appoint arbitrator for a pretty long period, having knowledge with the order or the direction given by the Hon'ble High Court, the petitioner made an application before the Hon'ble High Court for appointment of arbitrator after revoking the authority of Chief Engineer of the department to appoint arbitrator in terms of the earlier order. However, Shri Partha Sarathi Basu, solicitor and advocate was appointed by the Hon'ble High Court for adjudication of the claims raised by the petitioner and award was passed by Mr. Basu and the said award was confirmed by the High Court and the petitioner received payment in terms of the said award by execution of decree. The learned Counsel for the petitioners submitted that the claim which has been adjudicated by Shri Basu is completely different from the statement of claims preferred in the claimant's letter dated 18th June, 1979. He contended that the executive Engineer did not make payment of the sums demanded out of the aforesaid claims at all and the claim Nos. 1.1 to 1.13 under serial number of 1 list of claims/outstanding dues are all in respect of extra works executed by the claimant, on instruction and direction by the respondent. Such extra items of work were all required to be executed to complete the job as per the drawings made available to the petitioner. However, being directed afresh the Chief Engineer, PWD appointed Shri Santanu Basu Roi Chowdhury have entered into the reference and after considering the claims, statement of defence and materials on record, the Arbitrator rejected claim No. 1 to 6 and against claims No. 7 and 8 awarded nil. Although, the learned Arbitrator considered the claims separately but he has rejected the claims mainly on the ground that the claims and disputes as made by the petitioner had already been adjudicated by the earlier Arbitrator Mr. Basu.
(3.) IT was submitted by the learned Counsel for the petitioner that the award is perverse, opposed to public policy. IT was argued that the very basis of award is wrong and the Court should interfere. IT was submitted that the earlier claim was for increase of rates which was awarded in favour of the petitioner and the present claim is totally different from that of earlier one but the learned Arbitrator passed the award on the basis of earlier decision and/or award given by Mr. Basu. The learned Counsel for the petitioner submitted that following the principles as decided in (ONGC Vs. Shaw Pipes) reported in 2003, Vol. 4 SCC Page 705, the award should be set aside specially when the award is patently illegal and opposed to public policy. The learned Counsel as referred various paragraphs of the said decision and contended that the award should be set aside. The learned Counsel for the respondent on the other hand submitted that the award is lawful and valid and the learned Arbitrator have quoted the earlier claims and also after a careful analysis of the claims as raised in the earlier arbitration proceedings as well as the present claims, have come to definite conclusion that the previous Arbitrator, Mr. Basu have adjudicated the claims and disputes placed before him after completion of the work and receiving payment of final Bill with protest. He contended that it was the finding of the learned Arbitrator that the present claims are covered by the earlier claims and once the earlier award is held and directed with full and final settlement of the disputes and claims, there is no scope of any further adjudication of any claim on the same contract. He submitted that the award passed by the learned Arbitrator is a reasoned one and the learned Arbitrator have passed the award after careful examination of the claims and, therefore, there cannot be any grievance on the part of the petitioners.;