- (1.) THE present appeal filed under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as 'the said Act') is directed against the judgment and order dated 2.6.2000 passed by the District Judge, Kota (hereinafter referred to as 'the court below') in Civil Misc. (Arbitration) Case No. 43/92, whereby the court below has rejected the objections filed by the appellant -non claimant under Section 30 and 33 of the said Act against the award dated 31.3.92, and has made the said award rule of the court.
(2.) THE short facts giving rise to the present appeal are that the respondent -claimant was awarded the contract for the constructions of Bilas Irrigation Project Chain No. 52 to 74 vide the agreement No. 6/85 -86, as per the office order dated 31.1.86, for Rs. 84,64,779/ -. The said work was required to be completed within 24 months excluding the rainy season, which was of four months every year and accordingly the date of completion of the work was fixed as 14th February, 1989, after granting 15 days time for the mobilisation to start the work. It appears that the respondent -claimant abandoned the work as per his letter dated 29.8.88 and about two years thereafter raised various disputes with the appellant department. The respondent -claimant approached the District and Sessions Court, Kota for the appointment of the sole arbitrator under Section 20 of the said Act to settle the disputes between the parties, by filing the Civil Misc. Case No. 57/90. The said court, therefore, appointed the sole arbitrator as per the order dated 12.4.1991, to resolve the disputes between the parties in respect of the contractual work in question. The respondent -claimant filed the claim petition before the sole arbitrator making various claims under 19 heads and 32 items worth Rs. 67,34,609/ -. It appears that the respondent -claimant thereafter made another application to the District Court on 31.5.91 for referring the additional claims to the Arbitrator, and the court allowed the same as per the order dated 31.5.91. The respondent -claimant further made an application to the court on 23.10.91 for referring the claims for additional items and the court again ordered for the supplementary reference of those claims to the same arbitrator as per the order dated 30.1.92. The appellants had also raised certain counter claims before the Arbitrator. The arbitrator after appreciating the evidence on record allowed the claim No. 1,2,3,6,7,8,9(a)(i), 9(b), 9(f), 10(i), 11, 18 and 19, and disallowed the remaining claims of the respondent -claimant, and also rejected the counter claims of the appellants vide the award dated 31.2.92. The arbitrator awarded Rs. 1,04,01,661/ - and interest amount of Rs. 3,91,36,249/ - and in aggregate Rs. 4,95,37,910/ - to the respondent -claimant. Being aggrieved by the said award the appellant filed the objections before the court below under Section 30 and 33 of the said Act, which have been dismissed by the court below, vide the impugned order as stated hereinabove.
(3.) THE learned Addl. Advocate General Mr. Dinesh Yadav for the appellant taking the court to the award made by the arbitrator, vehemently submitted that the arbitrator had travelled beyond the scope of arbitration and misconducted himself by allowing the claims of the respondent -claimant dehors the agreement in question. According to Mr. Yadav the arbitrator had misconducted himself by awarding the amount for the claim No.1 as per the Basic Scheduled Rates (hereinafter referred to as 'the BSR'), though the respondent -claimant was entitled for the payments as per the rates mentioned in the ''G '' Schedule, in view of the condition NO.10 of the agreement entered into between the parties. As regards the claim No.2, Mr. Yadav submitted that the shrinkage allowance was admissible to the respondent @ Rs. 55/ - per cum as per the ''G '' Schedule, however the arbitrator had awarded the said allowance @ Rs. 70/ - per cum as per the BSR, dehors the terms and conditions of the agreement. As regards the claim No.3 for extra lead of earth work beyond two kilometers, Mr. Yadav submitted that such a claim was not admissible as per the agreement. As regards the claim No.6, he submitted that as per condition No.13 of General Specification and Conditions of Contract, the royalty for any material was to be paid by the respondent only and the arbitrator could not have awarded the said claim for the cost of sand on account of payment of royalty. According to Mr. Yadav the arbitrator had violated the formula envisaged in clause No. 45 of the agreement by granting escalation under the claim No.7. He also submitted that the appellant was compelled by the arbitrator to prepare the revised statement for the amount of escalation, though such a claim was not permissible under the agreement.;