N.K.JAIN, J. - (1.) THIS miscellaneous appeal is directed Under Section 39(vi) of the Arbitration Act, 1940 against the judgment of learned District Judge, Udaipur dt. 1.8.89 whereby the award given by arbitrator was made rule of the court.
(2.) THE facts in brief are that the appellant is a company registered under the Companies Act. Respondent No. 1 is a registered firm having its registered office at Calcutta and brench office at Udaipur. The appellant and respondent No. 1 entered into an agreement Ex. 1 on 14.5.81 for excavation and removal of overburden at Jhamarkotra Mines, Udaipur on a turn -key basis for excavation, removal transportation including loading and unloading, disposal clumping, dozing, levelling and spreading etc. of over burden at the specified dump yards including final dressing of the mine benches, faces and sides etc. and incidental mining rock phosphate are encoundered during the excavation of over burden, its transportation orestacks etc. The contract is for a period from 31.3.81 to 12.6.84 for the quality of 21.15 lacs cubic mis. subjects to plus minus 10% at the fixed rate of Rs. 35.80 all inclusive per cubic meter in respect of over burden and/or are actually excavated mined, removed etc. Clause 17 of the agreement reads as under: Clause 17 Blasting Operation : It is express term of this contract that while carrying out the excavation/Mining operations from the aforesaid areas, blasting wherever required, shall be undertaken by the contractor at his cost. The remuneration payable under this contract for the work aforesaid is inclusive of this element which includes cost of explosives, its accessories, transportation, salary and wages of its crew/blasters etc., or otherwise.... Clause 18 of the agreement Ex. 1 reads as under: The rate aforesaid shall remain firm, fixed and binding during the currency of this agreement till the issue of certificate irrespective of any fall or rise in the cost of mining operations of the work covered by this contract or for any other reason or any account or any ground whatsoever. Clause 73 of the agreement dated 14.5.81 provided for settlement of disputes and difference 'arising cut of' or 'in any way touching or concerning the contract' by a sole arbitrator to be appointed by a Managing Director of the appellant company. The respondent vide letter dt. 7.9.83 (Ex. C -46) raised certain disputes and claimed certain reiunbursements and/or additional payment and/or compensation for the alleged breach of the contract by the Rajasthan State Mines & Minerals Ltd, (hereinafter referred to as the appellant Company) but the appellant Company refuted the claims of compensation and/or additional payment of remuneration as to escalat on in the rates over and above Rs. 35.80 per cubic meter, as per Clause 18 of the agreement. On the notice of the claimant dt. 10.11.84 (C -55), the matter was referred to the arbitrator as per Clause 73 of the agreement. Mr. C.S Jha, Chairman -cum -Managing Director, Bihar State Mineral Development Corporation Limited, Ranchi was appointed as a sole arbitrator on by the appellant Company on 5.2.85 (Ex. C -57). A supplementary agreement was entered on 31.1.1985 extending the completion upto 30th September, 1985, which was subsequently extended upto 31st December, 1985. The respondent M/s. Eastern Engineering Enterprises filed a statement of claims in respect of eight items on 19.3.1985. The claim statement contained to following eight items: Claim No. Description of claim Relief claimed Remarks 1. Claim for increase in rate for Claimed reimbursement @ Originally reimbursed excavation work at the Foot - Rs. 25.40 per cu. m. upto at the rate of Rs 25.40 wall area demand for case - Aug. 83 and thereafter @ was claimed vide letter lation in the existing rates of 63.56 per cu. m. Over and dated 7.9.1983 excavation above the contract rate of Rs 35.80 Cu.m. In all claim under this item quantified for Rs 1,36,43,218/. 2. Claim for increase in costs of Claimed reimbursement @ work due to use of high explo - Rs. 1.80 per Cu.m. for all sives instead of use of ANFO excavation done to be done mixture. under the contract using high explosivex instead of ANFO mixture. Claim for reimbursement for Claimed reimbursement of losses suffered due to non - Rs. 22.55 lacs by way of loss availability of explosive. during the period February, 1983 to May 1983.
(3.) CLAIM for reimbursement of Claimed reimbursement of additional costs for mining and additional costs at the rate transport of ore. of Rs. 6/ - per ton towards mining and Rs. 4/ - per ton towards additional tran - spoliation to the crusher. Total @ Rs. 10/ - per ton for 47856 tonnes of Ore and mixed Ore upto 31st December, 1984 quantifying claim of Rs. 4,31,890/ -.;