Ashim Kumar Banerjee, J. - (1.) refusing to set aside an award under section 34 of the Arbitration and Conciliation Act, 1996. The undisputed facts of the case briefly stated are as follows : The parties entered into a contract for construction of an Intake Pump House for Mejia Thermal Power Station. The stipulated period for completion of the work was two years which expired on 22nd February, 1991. The work was actually completed on 31st May, 1995. On account of delay in completion of the work [Central Concrete & Allied Products Limited (hereinafter referred to as the Contractor] claimed revision of rates besides escalation provided in the contract. The Contractor also claimed payment on account of some extra works. The correspondence in this regard commenced with the letter dated 2nd February, 1994. By its letter dated 2nd February, 1994 the contractor raised 22 claims which included a claim on account of general revision of rates. It would appear from the letter dated 2nd February, 1994 that 19 out of 22 claims preferred therein related to extra items of work. On 9th April, 1994 a meeting took place between the parties wherein the letter of the Contractor, dated 2nd February, 1994 was thoroughly discussed. It appears from the minutes of the meeting dated 9th April, 1994 that DVC (hereinafter referred to as the Employer) agreed tin principle its liability to pay for 11 out of 19 items of extra work. The claim on account of revision of rates was also principally agreed to by the employer in the meeting dated 9th April, 1994. The Contractor by its letter dated 3rd November, 1994 claimed revision of rates by 60%. The Contractor also disclosed particulars of claims which were 35 in number which included the claim on account of revision of rates. By a letter dated 25th November, 1994 the Contractor invoked the Arbitration Clause and requested the authority to refer the claims to an Arbitrator. However, the Contractor by his further letter dated 7th December, 1994 pointed out that he was not insisting upon reference in view of the fact that DVC had condescended to consider the claims sympathetically. On 3rd May, 1995 a further meeting was held between the parties the outcome whereof has been recorded by the Contractor in its letter dated 18 May, 1995. From the letter dated 18th May, 1995 it appears that in the meeting dated 3rd May, 1995 in consideration of the employer agreeing to grant revision of rates by 39.28% with effect from 1st March, 1992, the Contractor had agreed to give up its claims, on account of over-run period of the contract, which have been tabulated in the letter dated 18th May, 1995. The abandoned claims include overhead charges for the extended period, additional hire charges for plant and equipment, loss of profit, various types of reimbursements and interest. However, the claim for extra items of work remained as would appear from the letter dated 18th May, 1995 and it would only be proper to notice the relevant portion of the letter which reads as follows: "Simultaneously, it was offered to us that all our other claims for extra- works would now be settled by D.V.C. expeditiously, in terms of clause 1.07 ofthe Additional General Conditions of the contract. We were further advised that the total offer should be taken as a package deal and we should give our positive written confirmation on the same, for D. V. C. to issue necessary orders on the above lines. Although the offer of D.V.C., for Rate Revision is very much less than our expectation, yet we had given our acceptance to the same during the meeting, in view of our excellent relationship with DVC as a client and also to avoid further financial hardship on account of still further delays in settlement otherwise. We now give our written confirmation on the above lines, as instructed."
(2.) The letter dated 18th May, 1995 ended with a request to the employer to issue a formal order which was subsequently issued by the employer on 6th July, 1995. The said formal order goes to show that the employer had agreed to upward revision of rates by 39.28% with effect from 1st March, 1992 and had also agreed to pay for the extra items of work which had already been admitted. We already have noticed that in the meeting dated 9th April, 1994 D.V.C. had agreed to pay 11 out of 19 claims on account of extra work. On 31st August, 1995 the Contractor submitted a supplementary bill claiming revision of rates as per the order dated 6th July, 1995. On 19th September, 1995 the Contractor wrote a letter to the Chief Engineer of the Employer stating that it had on 31st August, 1995 submitted supplementary bill No.l for a sum of Rs. 28.61 lakhs in terms of the D.V.C's order dated 6th July, 1995, which was yet to be paid. The Contractor in the circumstances requested the Employer to release the Bank Guarantee for a sum of Rs.20 lakhs furnished by the former to secure an advance payment made by the latter. On 26th September, 1995 the Contractor submitted its final bill for a sum of Rs. 82,51,110/- which included 29 items of extra work for a sum of Rs. 77,84,282.98P. The final bill taking into consideration the total work done from the date of commencement was for a sum of Rs. 3,94,36,930.01P., out of which a sum of Rs. 3,11,55,355/- had already been paid during payment from 1st to 66th running account bill, therefore, the balance payable according to the Contractor was a sum of Rs.82,81,675/- which included a sum of Rs. 77,84,282.98P. on account of extra works. Towards the final bill the employer paid a sum of Rs. 15,88,288/-. Therefore, even according to the final bill submitted by the contractor a sum of Rs. 67 lakhs approximately remained outstanding. The Contractor accepted payment of the final bill with the following endorsement: "Final bill as above accepted, subject only to the claims submitted to DVD/HQ".
(3.) The matter was referred to Arbitration. The Arbitrator has passed an award for a sum of Rs. 2,06,79,116/- inclusive of interests and costs with further interest at the rate of 18% per annum. It is this award which was the subject-matter of challenge before Banerjee, J. The learned Trial Court refused to interfere with the award on the following grounds : "In my view, those claims were withdrawn by the respondent in the said letter dated 18th May, 1995 conditional upon revision of rate as well as settlement of remaining extra work dispute. The petitioner revised the rate, however, did not settle the extra work dispute. Hence, the confirmation given by the respondent by the said letter dated 18th May, 1995 with regard to the withdrawal of certain claims was not be taken into account in view of the non-performance of the condition manipulated (stipulated) therein on behalf of the petitioner. In the event on this score the Arbitrator considered all aspect (illegible) and gave his decision on merits. I am no competent in decide the veracity of such decision in terms of section 34 of the Arbitration and Conciliation Act, 1996. In the result the petition fails and is hereby dismissed. There would, however, be no order as to costs.";