Ghose, J. - (1.) THIS appeal is directed against the judgment and order dated February 15, 1973 passed by the Court of first instance dismissing the application made by the appellant for setting aside an interim award dated September, 30, 1972 made by the joint arbitrators directing the appellant to refund to the respondent the sum of Rs. 2.24,582/-on or before November 15, 1972; with interest on the said sum at 9% per annum, if the same were not paid by the appellant on or before November 15, 1972. The said sum was lying deposited with the appellant as and by way of security and or earnest for due performance by the respondent of three several contracts dated July 22, 1969, June 7, 1970 and February 28, 1970 executed by the parties.
(2.) BY and under the above mentioned three several contracts, the respondent agreed to execute certain earth-works and to construct certain minor bridges in connection with the diversion of the main line at the end of and/or relating to the Bokaro Steel City Marshalling and Exchange Yard, as well as the Departure Yard Zone I in connection with the said Marshalling and Exchange Yard. All the said three contracts provided inter alia that the general conditions of the contracts, the special conditions, specification of work and memoranda of measurement of the South Eastern Railway, Schedule of Rates forming parts III and IV respectively of the South Eastern Railway Schedule of Rules revised edition 1958 corrected upto the correction slip No. 62 dated January 17, 1969 and the additional special conditions and special specifications annexed thereto would form part of the said contracts.
(3.) CLAUSE 16 of the general conditions of contracts of South Eastern Railway Schedule of Rates inter alia provide for deposit of security for due and faithful performance of his obligations by the contractor under the contract. Such security deposit will consist of. the earnest money initially deposited by the contractor along with the tender submitted by him, together with the balance of the stipulated amount of security deposit either paid by him or deducted by the Railway authorities usually @ 10% from the periodic payments to be made to the contractor on account of the work done by him. In the instant case the security deposit of Rs. 2,24,582/-consisted of the earnest money initially paid by the respondent and deductions made by the Railway Authorities from periodic payments made to the respondent on account of works done by him.;