P.K.Majumdar, J. - (1.) THIS application is taken out on behalf of the West Bengal Power Development Corporation Ltd. for setting aside the award dated 22nd December, 1989 passed by Mr. A. K. Mitra, the Umpire. The petitioner has taken several grounds challenging the said award.
(2.) AT the hearing of the application Mr. P. K. Roy the learned Counsel appearing with Mr. Sandip Ghose for the petitioner has submitted that the impugned award being the award for damages mainly should be set aside inasmuch as no oral evidence has been adduced by the claimant to sustain its claim for damages. The next submission on behalf of the petitioner is that the petitioner had raised a counter-claim and the learned Umpire has not considered the counter claim and it will not appear from the award whether the learned Umpire has rejected the counter-claim raised by the petitioner. The further submission on behalf of the petitioner is that the learned Umpire has relied on certain documents in coming to his conclusion and he has not given an opportunity to the petitioner to lead evidence on the documents. As such, according to the petitioner, the impugned award suffers from perversity. Mr. Roy, the learned Counsel for the petitioner has referred to schedule of claims at page 54 of the petition and he has referred to, in particular the Claim Nos. 3, 4 and 5. The Claim No. 3 is for reimbursement of establishment charges. The Claim No.4 is for deprivation of the claimants lawful dues arising out of the agreement at 25% of the unexecuted portion of the contract as, according to the claimant, the work under the contract could not be completed by the claimant due to breach of terms committed by the respondent in alloting the whole of the work site and in making payment of bill in terms of the contract and Claim No. 5 is on damages directly flowing from the contract. Mr. Roy has contended, referring to the said claims, that the learned Umpire has not entertained any evidence in support of the claimant's said claims and he has made an award not on the basis of any evidence and none of the claims raised by the claimant was proved before the Umpire. Mr. P. K. Roy has also submitted that the award is bad and is liable to be set aside as the learned Umpire has not considered the counter claim raised on behalf of the petitioner before the learned Umpire.
(3.) MR. P. K. Roy has relied on a decision of the Supreme Court in the case of K. V. George v. The Secretary to Government Water and Power Department, Trivandrum, AIR 1990 SC 53. It is observed by the Supreme Court that it is the duty of the Arbitrator while considering the claims of the appellant to consider also the counter-claim made on behalf of the respondent and to make the award after considering both the claims and counter claims. The learned Counsel for the petitioner has also referred to another decision of the Supreme Court in the case of Dandasi Sahu v. State of Orissa reported in AIR 1990 SC 1128. The decision of the Supreme Court in this case is that though the arbitrator is not bound to disclose as to what interpretation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him, no matter whether he relies on them or discards them from consideration.;