DIPAK KUMAR SEN, J. - (1.) THE material facts in and the proceedings leading up to this appeal are, in short, that a tender of Messrs. Chakraborty Bros., the respondent, submitted pursuant to an invitation to tender No. SE(N)/SB-k8/1976 issued by the Calcutta Metropolitan Water and Sanitation Authority, the appellant, for the work of laying 48" diameter underground R.C.C. conduit pipe along Prananath Chowdhury Lane and Rustomji Parsi Road, in the Cossipore area of Calcutta, known as Cossipore Chitpore Drainage Project, was accepted by the appellant on or about the 25th March, 1975. THE work order was issued by the appellant to the respondent on the 31st March, 1976. THE work was completed by the respondent in 1978 and sometime in 1981 a completion certificate was issued by the appellant to the respondent On the final bill for Rs. 4,75,524/- being raised by the respondent on the 6th April, 1983 in respect of the work done disputes and differences arose between the parties. In the terms of the arbitration clause contained in the contract, S.K. Majumdar, Officer on Special Duty of the appellant was appointed the sole arbitrator pursuant to an order dated the 26th/31st March, 1984 to adjudicate upon the said disputes.
(2.) THE Arbitrator duly entered into the reference. Statements were filed by the parties before the Arbitrator and documentary and oral evidence were adduced by the parties before the Arbitrator. The arbitrator made his award on the 12th November, 1985 in favour of the respondent and awarded a sum of Rs. 2,66,457/- including interest up to the date of the award, to be paid by the appellant to the respondent. The appellant was further directed to pay to the respondent a sum of Rs. 8603/- by way of refund of the balance of security money deposited by the respondent with the appellant. It was provided that if the aforesaid amounts were not paid to the respondent within two months interest at the rate of 10% per annum would run over the amounts awarded till payment of the same.
(3.) ON a notice of motion dated the 9th April, 1986 the appellant made an application under Ss.30 and 33 of the Arbitration Act, 1940, inter alia, for setting aside the said award. It was, inter alia, contended in the said application that under one of the items in the contract between the parties the respondent was required to retain 5 cm thick wooden shoring in place with necessary support and ancillary and making it in the same level with the ground level. The respondent was required to execute such work in respect of an area of approximately 2795 sq.m. and the agreed rate for the said item was Rs. 41.95 per sq.m.;