M.R.Mallick, J. - (1.) IN each of the above Award Cases the Calcutta Metropolitan Development Authority hereinafter referred as "C.M.D.A." has filed this application for setting aside the two Awards both dated. 24.5.89 made and published by Shri B. C. Mitra and Shri J. K. Dasgupta, the Joint Arbitrators. The Award in the matter of Award Case No. 617 of 1989 relates to a contract for construction of Eastern Metropolitan Bye-Pass and that of Award Case No. 618 of 1989 relates to a contract for construction of Barrackpore-Kalyani Express High Way. For the contract in connection with Eastern Metropolitan Bye Pass and Park Circus Connectors the claim of the Contractor-respondent was Rs. 55,80,895.78 in respect of the items of the claim which are mainly for alleged additional work done, loss for idle labours and escalation of prices of diesel, lubricant and petrol during the execution of the works.
(2.) IN the matter of contract for construction of Barrackpore-Kalyani Express High Way an additional amount of Rs. 39,65,472.98 on different counts which are also for alleged extra work done for loss of idle labours and for extra costs for the escalation of prices of diesel, lubricating oil etc. have been claimed. The Joint Arbitrators for the extra claim in connection with the contract for construction of Eastern Metropolitan Bye-Pass and Park Circus Connectors awarded Rs. 35,36,395/- to the claimant interest of Rs. 9,42,096/: till the date of entering upon reference and pendente lite interest of Rs. 16,59,277/- from the date of entering upon reference to the date of making and publishing the Award. It has also been directed that if the Award money be, not paid within ninety days from the date of the Award, the respondent-claimant shall be entitled to interest @ 10% per annum on the sum due from the date of the Award till the payment or the decree upon the Award whichever is earlier. In connection with the claim for contract for construction of Barrackpore - Kalyani Express High Way the Joint Arbitrators awarded a claim of Rs. 28,94,052/- and also interest of Rs. 8,16,123/till the date of entering upon the reference and also pendente lite interest of Rs. 3,12,742/- from the date of entering upon the reference to the date of making and publishing the Award. It has also been directed that if the payment be not made within ninety days from the date of the Award then the claimant shall be entitled to interest @ 10% per annum on the sum due as aforesaid from the date of this Award till the payment of decree by the Court upon the Award whichever is earlier.
(3.) THE petitioners C.M.D.A. in both the petitions have raised the common questions of law challenging both the Awards on the same grounds. THE following are the main grounds on which the A-ward have been challenged (a) Shri B. C. Mitra, one of the Joint Arbitrators is an Ex-Director of C.M.D.A. and in his capacity as the Director he had occasion to deal with the work in question and had given decision relating to such work. As the Director of the C.M.D.A. he rejected the self-came claim and has now as one of the Arbitrators awarded it and has, therefore, become a Judge of his OWII cause. When Shri B. C. Mitra was nominated as an Arbitrator then the Officers of the C.M.D.A. were not aware of this position. But Shri Mitra who was fully aware of the position ought not to have acted as Arbitrator and the Awards made by him jointly with Shri Dasgupta is, therefore, vitiated by mis-conduct. (b) THE Awards have been made in disregard of the express provision of the contract. Claims on account of escalation ought to have been rejected as Clause 70 of the. General Condition of the Contract is a bar against such escalation cost. THE claims regarding the extra work ought .to have been rejected as the same is also hit by the express provision of the General Condition of the Contract. (c) THE Contractor has received payment under the final bills without any protest and cannot, therefore, make any further claim thereafter. (d) THE Joint Arbitrators has granted pendente lite interest which is not permissible.;