C.M.LODHA, C.J. - (1.) THESE are two connected appeals arising out of proceedings under the Arbitration Act, 1947 (which will hereinafter be referred to as theAct).
(2.) THE facts brought on the record are inadequate, and, therefore, it may not be possible to narrate all the relevant facts giving rise to these appeals. Suffice it to say, that the respondent M/s Sharma and Company entered into a contract with the Union of India far constructing concrete pavements and brick enclosures etc. at Nil, Bikaner. An agreement was duly executed by the parties. It is the common case of the parties that the work was to be commenced on July 10, 1963, and was to be completed on May 9, 1964. There is also no dispute on the point that the work was not completed before the stipulated date The respondent made an application on May 2, 1964, for extension of time to finish the work and extension was granted upto June 9, 1964, but the work was not completed within the extended time. The parties are further agreed that it was actually completed on June 28, 1964, that is, after 19 days of the extended time. This gave rise to certain differences between the parties and, consequently, in accordance with the tetras of the agreement, a request was mule to the Arbitrator Mr. G.R. Mirchandani, Section 1, (Works) Engineer in Chief's Branch, Kashmir House, New Delhi, to decide the points of dispute between them The arbitrator gave his award on September 6, 1967. The relevant portion of the award reads as under: 1. Claimant's Claim. (a) Claim No. 1 for Rs. 48394.54 - The amount recovered as compensation by the respondent. Claim is rejected. (b) Claim No. 2 for Rs. 1610 20 - The amount recovered by respondent from the final bill on account of repair charges of 2 Nos. Road Rollers - E/M9541 and E/M 9423. Respondent shall refund the amount of Rs. 161020 (Rupees one thousand six hundred and ten and paise twenty only) to the claimant. (c) Claim No. 3 for Rs. 2982 78 The amount recovered by respondent from the final bill towards the cost of coal dust consumed in excess. Respondent shall refund the amount of Rs. 2982.70 (Rupees two thousand nine hundred and eighty two and paise twenty only to the claimant. 2. Cost of Reference: Each party shall bear their own cost of reference.3. Cost of Stamp - paper. Cost of stamp paper shall be borne by the respondent. On October 5, 1667, the respondent M/s. Sharma and Company made an application under Section 30 and 33 of the Act praying that the award may be set aside to the extent penalty has been imposed upon the applicant. Act and the award may be remitted and referred to arbitration to the said arbitrator Shri Mirchandeni or to any other arbitrator whom the court may be pleased to appoint for reconsideration and for giving a fresh award. The replication was opposed on behalf of the Union of India which also filed a written reply. The learned District Judge, Bikaner, framed five issues on the pleadings of the parties. None of the parties produced any evidence. However, the applicant put in an affidavit of one Shiv Lal No other document was tike by any of the parties except a copy of the award. Even the record of arbitration was not summoned by the Court. By his judgment dated May 15, 1969, the learned District Judge held that the weather during the period the comment was to be completed was abnormally bad on account of dust -storm, and, therefore, the applicant had to suspend the work for 23 days. In this view the matter, the learned District Judge came to the conclusion that the penalty was wrongly imposed upon the applicants the learned District Judge also found that the arbitrator shall be deemed to have entered on the reference on the date he issued notice to both the parties fixing the date of hearing and that notice was issued on February 10, 1967. He further found that under Rule 3 of the first Schedule to the Act read with Clause 70 of the agreement the period for giving the sward was four months but the award had actually been given after the expiry of the period without obtaining the orders for the sis on from the court. In this view of the matter he found that the award was ineffective. In the result the learned District Judge allowed the applicant's claim on May 15, 1969, and observed as follows: In view of the findings given above, I allow the claim of the petitioners in respect of Rs. 40,39454 as well besides the claims allowed by the arbitrator. The award is modified in terms of the order given above under Section 15 of the Act. No parties will get costs. Appeals No. 63 of 1969 is directed against the Judgment dated May 15, 1969.
(3.) THEREAFTER on May 21, 1969 M/s. Sharma and Company made another application under Sections 14 and 17 of the Act praying that the modified award may be made the rule of the court, and, in accordance with the modified award a decree for Rs. 52,817.44 be passed against the Union of India. It appears that even though Shri Dwarka Prasad Joshi appeared on behalf of the Union of India, yet no reply was filed to the application. In fact, nothing was done on behalf of the Union of India. By his order dated 18 -9 -69 the learned Distt. Judge ordered that the modified award dated 15 -5 -1969, be made the rule of the court and a decree be framed accordingly. It was also observed in the order that no arguments whatsoever had been advanced on behalf of the Union of India by its lawyer. Accordingly, a decree for Rs. 52,987.44 was passed against the appellant. Miscellaneous Appeal No. 1 of 1970 is against the judgment and decree dated September 18/26, 1969.;