- (1.) THE Court : This is an application u/s. 30 read with section 33 of the arbitration Act, 1940 praying for setting aside of the Award made by S. S. Chatterjee, Sole Arbitrator dated 26.9.89. An application u/s. 5 of the Limitation Act has also been filed for condoning the delay in moving this application.
(2.) FACTS may be briefly stated as follows : Pursuant to invitation of tender issued by the applicant, the respondent on or about 4.1.83 submitted its tender being Tender No.8 of 1983-84 for house to house garbage collection, carrying and disposal in Sectors I, II and III, Salt Lake City for the period 1983-84, 1984-85 and 1986-87 at the rates mentioned in para 1 to the petition. The petitioner on 23.2.83 accepted the tender and issued the work order in favour of the respondent being Works No. 0648(E) dated March 14, 1983 through Executive engineer, Bidhannagore Municipal Services Division. A contract in West Bengal Form No. 2911 also containing special. Terms and Conditions and General Specification was executed between the respondent and the applicant through the Administrator, Bidhannagore. On or about August 22, 1984 the petitioner and the respondent entered into another contract in respect of Tender No. 222 of 1983-84 "for removal of garbage from Salt Lake City Sectors I, II and III during 1.9.83 and 31.8.84 to the dumping ground, which was also extended from time to time till March 1987 on the terms and conditions specified in the para 5 to the petition. The respondent submitted its R.A. Bills from time to time and received payment thereon, After 5th December, 1988 when the respondent submitted the log book maintaining terms of the contract between the parties, the Department of the petitioner could pay the final bill of Rs. 16,500/-. Thus, the total bill. value including for the extended period upto January, 1988 in the sum of Rs. 864,317/- was paid and the security deposit balance of Rs. 20,831/- was collected on 1st week of January, 1989. The respondent had collected 80% of the security deposit earlier before the payment of the final bill as aforesaid. On the aforesaid Tender No.8 of 1983 coming to an end on or about March 31, 1987 the Department of the petitioner by letter dated 1.1.87 enquired from the Contractor what his charges would be if he were to continue till 311.12.87. On considering the Contractor's offer the Department finally accepted a rate of Rs. 27,000/- over 1986 rate as aforesaid and the contractor continued to work of collecting the garbage till January, 1988 on terms above. The Department by its letter dated 2.8.85 enquired of the respondent what rates it would charge to collect till garbage from the big Housing Estates in Salt Lake. The respondent submitted the rate of Rs. 236/- per day. However, no tender was granted to the respondent in respect of the big Housing Estates and those Estates made their own arrangements to remove the garbage on the ground floor and the same is to be removed by the Respondent the Contractor of Tender No. 222 of 1983 as aforesaid from the ground floor of the said big Housing Estate to the dumping ground.
(3.) STRANGELY the respondent without doing any extra work wrongfully raised 3 supplementary claims, there being no written direction from the Departmental Officers in regard to any of the heads of claims made in the supplementary claims and there being no acceptance by the Department of any of the three supplementary claims. There is no basis at all for any of the supplementary claims except for being collected from April, 1983 to August, 1983 the garbage on ceremonial occasions such as Sradh, marriage and birth day as per written request by the Departmental Officers for which the claimant was requested to produce the relevant documents. After August, 1983 the Administrator issued directions to its Department to place Dustbins on payment of a fee of Rs. 30/- for such ceremonial occasions and the garbage used to be removed under Tender No. 222 of 1983-84 in terms thereof and the respondent herein has had nothing to do therewith from August, 1983 at all. Each of the alleged aforesaid supplementary claims was submitted after the alleged period of work and therefore apart from they not having performed any alleged extra work which could be prevented the alleged claims being submitted after expiry of alleged period which the alleged claims relate to the question of preventing the Contractor from executing the work or availing the benefit thereunder did not and cannot arise. The petitioner has challenged each and every item of the supplementary claims and has contended that even if there is no basis for such claims the said claims not having been authorised by a written order could not have been basis for any claim to be made before the Arbitrator. But the Ld. Arbitrator even though no part of claim was proved at all by leading the evidence and the each of the claim was barred by limitation allowed the said supplementary claims and made and published as award to the extent of Rs. 5,67,795/ -and also directed that if the award money is not paid before 31st December, 1989 the petitioner shall have to pay interest @ % per annum till the full payment is made. The petitioner being aggrieved has filed this application for setting aside the award and as some delay was made in filling those application, an application for condoning the delay has so been made.;