- (1.) HEARD counsel for the parties.
(2.) THIS appeal is directed against the order dated 8th September, 2009, passed in Misc.Case No.07/2008, by which the court of Sub-Ordinate Judge - I, Ranchi, has partly allowed an application under section 34 of the Arbitration & Conciliation Act, 1996, and set aside the part of the award awarding an amount of Rs.1,50,000/- on account of the appellant's doing extra work alleged to have been done under the contract. Learned counsel for the appellant submitted that the scope under section 34 of the Act, 1996 is very limited and the court below could have interfered with the award only on satisfying itself about the validity of the ground under sub-section (2) of Section 34. It is submitted that the learned Arbitrator gave full opportunity to the respondent-State to produce documents, particularly the measurement book and work order book but in spite of grant of several opportunities, the respondent-State did not produce the measurement book and work order book and therefore, the learned Arbitrator drew adverse inference against the State. It is also submitted that as per clause 11 of the agreement, the extra work could be done even during the execution of the work by the Engineer-In-Charge and therefore, doing extra work was within the scope of the agreement between the parties. Learned counsel for the respondent-State vehemently submitted that the court below legally and validly separated that part of the award, which could not have been awarded to the appellant, relying upon a decision of the Hon'ble Supreme Court delivered in the case of M.D., Army Welfare Housing Organization Vs. Sumangal Services Pvt. Ltd. (AIR 2004 SC 1344).
(3.) I considered the submissions of the learned counsel for the parties, perused the facts of the case and the reasons given by the learned Arbitrator and the court below. It is the case of the appellant himself that under clause 11 of the agreement, he was entitled to payment for the extra work. Clause 11 is very clear and it empowers the Engineer-In-Charge to make any alteration in for additions to the original specifications, drawings, design and instructions that may appear to him to be necessary or advisable during the progress of the work and on his satisfaction, the Contractor is bound to carry out the work in accordance with any instructions which may be given to the Contractor by the Engineer-In-Charge in writing and signed by him.;