- (1.) THIS matter arises out of an application under S.30 of the Arbitration Act, 1940 wherein the petitioner, inter alia, has prayed for setting aside of an award dated 17-2-94 made and published by Mr. Debiprosad Roychowdhury and Mr. Santosh Kumar Chandra, Joint Arbitrators, in a reference made to them in relation to the disputes and difference between the petitioner and the respondent No. 1 herein.
(2.) THE fact of the matter is as follows: On or about 9-8-75 a contract was entered into by and between Calcutta Port Trust and the respondent No. 1, in terms whereof the respondent No. 1 was awarded the work of design, construction, completion and maintenance of the Second Hooghly Bridge, commonly known as Vidyasagar Setu. THE said agreement was modified by three supplementary agreements all dated 16-9-77. THE first supplementary agreement contained an arbitration clause providing for settlement of their disputes and differences in terms thereof. A fourth supplementary agreement was executed by the Calcutta Port Trust and the respondent No. 1 on 26-12-80 in terms whereof the petitioner was substituted in place and stead of Calcutta Port Trust, in the aforementioned contract by reason whereof the contract/supplementary agreements were deemed to have been executed between the petitioner and the respondent herein. In terms of the aforementioned fourth supplementary agreement the arbitration clause was also modified, which is to the following effect: - "Settlement of Disputes: Arbitration. 10.19. 1 If any dispute or difference of any kind whatsoever shall arise between the Trustees and the contractor in connection with or arising out of the contract or construction or the carrying out of the works (whether during the progress of the works or after their completion but during the period of maintenance and whether before or after the determination, abandonment or breach of the contract) it shall be referred to two Arbitrators (one to be appointed by the Trustees and the other by the Contractor) or to an Umpire to be appointed by the said Arbitrators pursuant to and with regard to the mode and consequence of the reference and in all other respects to comply with the provisions of the Arbitration Act, 1940 ( Act No. X of 1940 of the Central Legislature) or any re-enactment or statutory notification thereof provided however that Umpire shall be appointed in writing before entering on the reference. Such Arbitrators or the Umpire, as the case may be, whose decision shall be final and binding shall have full power to open up review and revise any decision, opinion, direction, certificate or valuation of the Chairman of the Trustees and neither party shall be limited in the proceedings before such Arbitrators or the Umpire to the evidence or arguments put before the Chairman of the Trustees for the purpose of obtaining his decision above referred to, provided always that no decision given by the Chairman of the Trustees originally in accordance with the foregoing provisions shall disqualify or preclude in from being called as a witness and giving evidence before the Arbitrators or the Umpire as the case may be on any matter whatsoever relevant to the dispute or difference so referred to the Arbitrators or the Umpire as aforesaid." In terms of the said contract, the respondent No. 1 was to be given a lump sum amount of Rs. 6,09,27,125.00 which, however, provided for escalation and extra items.
(3.) ADMITTEDLY, the aforementioned contract was to be executed at two levels, i.e., sub-structure work and super-structure work. Sub-structure work was sub-contracted to M/s. Gamon India Ltd., whereas the super structure work was sub-contracted to M/s. Braithwaite Burn and Jessop Construction Co. Ltd. During execution of the sub-structure work of the main project, disputes and differences had arisen between the parties from time to time. The first of such dispute was referred to arbitration in November, 1982 and aaaan award was made and published by the Joint Arbitrators in favour of the respondent No. 1 to the extent of Rs. 79,28,301.00. Further disputes and differences having arisen, a second reference was made in terms of the said arbitration agreement on 2-5-85 and an award was made by the Arbitrators to the extent of Rs. 2,50,62,943.00 in favour of the respondent No. 1. The third dispute was referred to the Arbitrators and by an award dated 14-5-92 a sum of Rs. 41,83,999.00 was awarded in favour of the respondent No. 1.;