- (1.) THE appellant entrusted the respondent to construct guardwall to protect erosion of the river Ganga near Farakka. The job was to be completed within 90 days commencing from May 1, 1982. Site was, however, not handed over to the respondent admittedly on May 1, 1982 when they were supposed to start the work. According to the respondent there had been delay of 40 days in handing over the site. The appellant, however, contended that it was handed over on May 6, 1982 i. e. after 5 days. The Arbitrator found that such delay was for 21 days. The Arbitrator observed that nobody could produce any documentary evidence wherefrom the exact date of handing over could be found. The work was completed after about six months. Running bills were paid from time to time. The final bill was, however, kept pending for a long time. Apart from the cost of work the respondent raised various claims on account of idle labour charges, extra cost borne by them, cost of materials not allowed by the appellant as well as for refund of earnest money. The appellant made a counter claim on account of non employment of a graduate engineer as per clause 36 of the agreement, non-return of surplus materials as well as compound interest. Both the claims and cross claims were referred to arbitration of a retired engineer of the appellant. The Arbitrator examined each and every claim and ultimately awarded a sum of Rs. 22. 46 lacs in favour of the respondent and Rs. 0. 06 lacs in favour of the appellant. Appellant moved the learned single Judge, inter alia, praying for setting aside of the award on various grounds mentioned in the said application. The learned single Judge by His Lordship's Judgment and order impugned in this appeal rejected most of the contentions of the appellant, however, reduced the rate of interest on awarded sum from 18% to 10%. Analysis of the Judgment impugned:
(2.) ANALYSIS of the Judgment of the learned single Judge reveals as follows: (i) Since the final bill remained pending till the disputes were referred to arbitration the claim of the respondent was not barred by limitation as erroneously contended by the appellant. (ii) The challenge to the second claim of the respondent was of substance as the Arbitrator did not apply the provision of section 73 of the Contract Act applicable therefor. The Arbitrator awarded a sum of Rs. 3. 00 lacs on that count. It was set aside by the learned single Judge relying on the principles laid down by the Apex Court in the case of ONGC v. Saw Pipes, reported in 2003 (5), Supreme court Cases, Page 705. (iii) Challenge to the awardisg of interest was not tenable in view of a decision of the learned single Judge reported in 2004 (2), arbitration Law Reporter, Page 480. Learned Judge observed that the said single Bench decision considered all the relevant Apex court dedsions on the issue. His Lordship relying on the said decision rejected such contention. (iv) His Lordship, however, reduced the rate of further interest from 18% to 10%. (v) The application was partly allowed. The award was modified by setting aside the award in respect of the second claim and reducing the rate of interest for post award stage from 18% to 10%.
(3.) BEING aggrieved by and dissatisfied with the Judgment and award of the learned single Judge, appellant preferred the instant appeal. The respondent, however, accepted His Lordship's decision and did not file any cross appeal or cross objection on that score. Contention of the appellant:;