ASHOKE KUMAR DASADHIKARI, J. - (1.) THE petitioner has filed this application under Section 34 of the Arbitration and Conciliation Act, 1996 challenging the award made and published by S. K. Mitra, sole Arbitrator on 31st December, 2009.
(2.) THE respondent herein awarded Work Order No. CAL/MMD/325/Erect -II dated 10th January, 2001 to the petitioner for laying of Dockpipe Lines (both overground and underground) that two Nos. 700 dia/and 1 No. 450 dia pipes from TP -11 to Pump House Tank Farm (inside IOCL, existing terminal) Pertaining to Docklines Projects at Paradeep for Indian Oil Corporation Ltd. All the terms and conditions as agreed between the respondent and Indian Oil Corporation Ltd. were binding on the claimant on back to back basis. THE petitioners accepted the price as mentioned in the Work Order was Rs. 4,56,32,176/ - inclusive of all taxes and duties. It was a lump sum turnkey contract for laying of Dockpipe lines along with allied mechanical, civil and electrical works completing all respect includes commissioning at Paradeep (Orissa). THE petitioner accepted the price on lump sum basis as would appear from their letter dated October 13, 2000. THE stipulated completion period was 36 weeks from the date of placement of Work Order. Disputes and differences arose between the petitioner and the respondent in execution of such work and the petitioner invoked arbitration clause No. 53 of the general conditions of contract vide their letter dated 9th July, 2004 for appointment of arbitrator. The Chairman cum Managing Director of respondent by his letter dated 20th July, 2004 appointed Shri K.R. Saha, General Manager of the Respondent, as sole Arbitrator for adjudication of the disputes/differences, claims and counter claims of both parties in support of the above contract. Objection was raised by the petitioner against such appointment and Shri K.R. Saha had to resign. Thereafter, S.K. Mitra was appointed as sole Arbitrator for adjudication of the disputes/differences, claims and counter claims of both parties. The sole Arbitrator entered upon the reference on 5th May, 2006. Both the petitioner and the respondents filed their respective statement of claims and counter statement and also counter claims along with various documents relied upon by the respective parties. Both petitioner and the respondent appeared before the learned Arbitrator and argued their case through their learned Advocates and submitted their written notes on arguments. The learned Arbitrator have gone through the statement of claims, counter claims replies, rejoinders, and the written notes of arguments and passed the award upon considering all materials on record as well as the submissions of the learned Advocates and or Counsel appearing for the parties.
(3.) MR. Mitra, learned Senior Counsel appearing for the petitioner submitted that the learned Arbitrator did not go into the dispute in question but, rendered a finding in the award that the petitioner had submitted their final bill on 11th September, 2002 for Rs. 4,56,32,176/ - without raising any dispute. Consequently, the learned Arbitrator has recorded a finding that the petitioner had waived their right in respect of their claims which was submitted to the respondents on 16th February, 2003 which clearly indicates that the petitioner had not waived their right in respect of disputed items and further confirm that the petitioner has raised dispute in that regard.;