Ashim Kumar Banerjee, J. - (1.) Disputes arose between the parties on the working of a contract. The parties referred their disputes to the sole arbitration of the nominee of the respondent as per the arbitration clause contained in the agreement. Altogether hundred and two sittings were held. The Arbitrator thereafter published his award partly allowing the claim of the appellants. Being aggrieved by the said award the respondents filed an application for setting aside of the award before the learned single Judge. His Lordship rejected the contentions of the respondents to a substantial extent and refused to set aside the award save and except claim no. 3. The respondent accepted the judgment and order of the learned single Judge and paid the amounts covered under the award so upheld by the learned single Judge. The judgment and order of His Lordship is reported in 2008, Volume - III, Calcutta High Court Notes, Page - 799. The appellant/claimant filed this appeal against the part of the judgment and order of His Lordship disallowing the claim no. 3. Hence, we need not dilate on all the issues and we restrict ourselves to claim no. 3.
(2.) Claim no. 3 is a claim on account of extra cost over run on account of delay and/or suspension of work due to reasons attributable to the respondent for an amount of Rs. 13.06 lacs. The Arbitrator considered the said claim as would appear from the page 185 of the Paper Book. He ultimately allowed Rs. 6.5 lacs payable by the respondent to the appellant/claimant.
(3.) The relevant extract of His Lordships judgment and order is quoted below:- "It is the challenge on account of serious irregularity as against the award on the third head of claim, that remains to be assessed. The petitioner has referred to the judgments reported at (1999) 9 SCC 610 : 1999 (Suppl.) Arb. LR 440 (SC) and (2001) 4 SCC 241 : 2001 (1) Arb. LR 643 (SC) for the proposition that if time is extended by an employer on condition, whether in the contract or in the letter granting extension, that no extra cost can be claimed for the period of extension, the arbitrator cannot override such condition to provide for damages or additional costs during the extended period. Clause 65 of the general conditions in its last limb, provides that no extra payment shall be made to the contractor on any account for extension of time for completion of work. The respondent resists the petitioners challenge to the third head of claim by referring to the arbitrators finding, under the first head, that it was the employer who was to blame for the delay in the execution of the contract. The respondent says that once the employer was found responsible for the delay, in accordance with the principles embodied in Section 70 of the Contract Act, the contractor was entitled to compensation and it is such compensation which has been recognised by the arbitrator and awarded in favour of the contractor under the third head of claim. Clause 65 of the general conditions according to the respondent, would not cover situations where delay was attributable solely to the employer. The instances mentioned in clause 65 are pointed out and it is submitted that the employer could not take advantage of its own wrong and take refuge under clause 65 to deny a claim on account of damages being claimed by the contractor for delay attributable to the employer. Clause 65 of the general conditions provides as follows: '65. Should the amount of extra or additional work of any kind or other special circumstances including exceptional weather conditions, civil commotion, strikes, or lock-outs which may occur be such as to delay the completion of work, the Contractor shall apply in writing to the Engineer for an extension of time for the completion of work within the days of such occurrence. The Engineer shall determine the period of such extension and grant extension of the period of contract and waive the application of the compensation under Clause 48 hereof if he thinks the request reasonable. No extra payment shall be made to the Contractor on any account for such extension of period.' It is an admitted position that an extension was sought by the contractor following which the time for completion of the contract stood extended. It was open to the contractor to not seek extension upon holding the employer responsible for the delay and seek damages. The instances cited in clause 65 of the general conditions are illustrative and not exhaustive. Once the contractor sought and obtained an extension irrespective of the fact that such extension was on account of delay attributable solely to the employer, the contractor could not seek extra payment for the extended period in view of the clear bar under clause 65 unless the employer relaxed the condition on being persuaded by the contractor that the delay was solely on account of the employer. The respondent urges that there are intelligible reason in support of the award made by the arbitrator under the third head of claim and the petitioners challenge is without basis. On the strength of the decision reported in (1989) 1 SCC 532 : 1989 (1) Arb. LR 315 (SC), the respondent submits that even if it is obligatory for the arbitrator to state reasons, the arbitrator is not obliged to give any detailed judgment and if the basis for making an award is discernible, that should suffice. Even by such test, the award under the third head cannot be sustained. Merely because the arbitrator has found that the employer was responsible for the delay in the completion of the work, would not imply that the last limb of clause 65 of the general conditions went out of play altogether. Clause 65 encompasses delays on all counts, including delays attributable solely to the employer. The clause is clear and unambiguous. It robs the contractor of any right to claim on account of additional costs incurred during the period of extension. The arbitrator disregarded such clause in awarding in favour of the claimant in respect of the third head. The very basis of the claim under the third head was questionable, the arbitrator did not attempt to deal with the petitioners objection and it is irrelevant that the arbitrator made an unreasoned, wild assessment as to quantum, since such claim could not have been entertained at all. The award in favour of the respondent under the third head of claim in the sum of Rs. 6.5 lakh is set aside.";