VINOD K.SHARMA,J - (1.) THE petitioner by way of present revision petition has challenged the order passed by the learned Additional District Judge, Patiala, dated 21.2.2003 affirming the judgment and decree dated 26.8.2002 passed by the trial Court vide which award dated 26.7.1993 passed by the Superintending Engineer, Patiala, has been made rule of the Court.
(2.) THE petitioner was awarded a contract for construction of 10 Registrar Flats in New Rajindra Hospital, Patiala, vide agreement No. 26/6/1972-73. The said agreement was terminated on 22.10.1974 on the plea that the work had not been executed by the petitioner within the stipulated period. A decision was taken to invoke clause 2 of the agreement to impose 10% compensation amounting to Rs. 36,200/- based on the estimated cost of the work. Action was also proposed to be taken under clause 3 of the said agreement. After a gap of 19 years clause 25-A of the agreement was invoked and claim of Rs. 1,58,594/- inclusive of interest for the period from 1974 to 1993, was referred for arbitration to the Superintending Engineer, Patiala Circle No. (1), PWD B&R, Patiala. The reference was entertained by Shri B.D. Gupta, the then Superintending Engineer, and an ex parte award dated 26.7.1993 awarding a sum of Rs. 45,126/- was passed against the petitioner and in favour of the Executive Engineer. An application was made on 18th August, 1993 for making the award rule of the Court and on notice the petitioner filed objections under Section 30 read with Section 33 of the Arbitration Act, 1940. The primary ground for setting aside the ex parte award was that the Arbitrator had not issued any notice to the petitioner and, therefore, the award being in violation of the principles of natural justice amounted to misconduct on the part of the Arbitrator. The objections filed by the petitioner were rejected by both the Courts below.
(3.) IT is pertinent to notice here that the learned Additional District Judge, Patiala has been pleased to record a finding qua notice as under :- "A perusal of Ex. P-4 further reveals that the contractor has been described as Sh. Ravinder Singh Sodhi, 6, Daljit Colony, Patiala and the name of the work was construction of 10 Nos. Registrar Flats in Rajindra Hospital, Patiala. A notice was issued to the contractor on the said address. The copy of the notice is Ex. P-1. A perusal of the file of the Arbitrator shows that the claim was filed by the Executive Engineer, PWD B&R Patiala in June, 1993. On 24.6.1996, the XEN was present but no one turned up on behalf of the contractor. The registered notice sent to the contractor was received back unserved. The case was adjourned to 8.7.1993 and the copy of the said order was ordered to be sent to the contractor for information and necessary action. On 9.7.1993, the Arbitrator ordered that since contractor had not turned up in spite of notices sent to him under registered covers, the case was closed for ex parte decision. A perusal of the registered covers available on the file reveal that notices were sent to Sh. Ravinder Singh Sodhi at his address, 6, Daljit Colony, Patiala. As per the reports dated 22.7.1993 and 28.7.1993 on the registered covers, they were received back unserved due to incomplete address. As per the report dated 3.7.1993, the addressee had left without address. A perusal of the covers reveals that the notices had been sent to the contractor on the address given by him in the agreement. Thus, the notices sent to the contractor at his address had been received back unserved although the address mentioned on the registered letters was correct. In this situation the Arbitrator had no option but to pass an ex parte award. Since the final payment had not been made, the reference had been made within the period of limitation. The Arbitrator had the jurisdiction to entertain the reference as it was made in accordance with clause 25-A of the written agreement between the parties." The finding recorded above clearly shows that no notice was issued to the petitioner by the Arbitrator.;