- (1.)THE appellants are the builders. The respondent is the owner of the land. This appeal filed by the builders is directed against the order dated 7-9-2005 passed by learned Sub-Judge, VI, Ranchi, in Misc. Case No. 1 of 2005, dismissing the application filed by the appellants-builders under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called as the act) confirming the award dated 31-10-2004 passed by the learned sole Arbitrator.
(2.)THE short facts leading to filing of this appeal are as follows :-On 1-10-1998, M/s. Vardaan Builders, the appellant herein, the builder, entered into a development agreement with one Veer krishna Sahay, respondent herein, who is the owner of the 33 Kathas of land in M. S. Plot No. 1480 at 70, S. K. Sahay Road, ranchi. The said development agreement was for construction of a Multi-storeyed residential Apartment. After the aforesaid agreement was entered into, the construction work of the building had commenced. As per the agreement the building was to be completed within 18 months from the date of agreement and a grace period of 6 months was also provided. Thus, total time for completion and handing over of the possession of the residential multi-storeyed building was 24 months, i. e. from 1-10-1998 to 1-10-2000. The said agreement provided that if the builder fails to complete the building within 24 months, he shall pay to the owner a penalty of Rs. 30,000/- per month for the first six months and thereafter rs. 50,000/- per month. As agreed by the agreement, a sum of Rs. 6 lacs was deposited by the builder with the owner as security deposit, which is refundable by the owner to the builder within 15 days from the date of completion of the building. On 3-5-1999 the construction of the building was suspended on account of a notice issued by the Circle Officer, Ranchi, challenging and questioning the title of the owner and the legal right of the builder to construct the building. Then both the builder and the owner challenged the said notice by way of filing the writ petition in cwjc No. 2795/1999r in High Court. On 3-2-2000, High Court passed an interim order restraining the Government authority from taking any action over the construction. Thereafter from 4-2-2000, work of construction was resumed. However, the said building was not completed within the stipulated period of 24 months. Therefore, the owner sent a legal notice to the builder on 21-3-2002 stating that builder failed to perform his contractual obligation within the period and hence, he is liable to pay penalty of Rs. 30,000/- per month for the first 6 months and thereafter Rs. 50,000/- per month till completion of the building to the owner. The builder replied to the legal notice dated 21-3-2002 that the construction or the building was completed on 8-6-2001 itself and even the building was complete of his allocated area to hand over possession to the owner, but the owner did nor pay the cost of alteration and deviation which were carried out by the builder on the request of the owner and therefore, the builder demanded the amount of the said cost for handing over the possession of the building. Thus, since dispute and differences arose between the builder and the owner, an application under Section 11 (6) of the Act, was filed by the owner before the High Court for appointment of an Arbitrator in A. A. No. 19/ 2002 as per the terms of the agreement, By the order dated 16-12-2002, Hon'ble Mr. Justice P. K, Sarkar, Retd. , was appointed by the High Court as the sole Arbitrator. Before the Arbitrator, claims and counterclaims were made by the owner as well as by the builder. The sole Arbitrator, after perusing the records and the documents produced by both the parties and hearing the parties, passed an award on 31-10-2004. Aggrieved by that, the builder filed an application under Section 34 of the Act before the learned Sub-Judge, Ranchi, for setting aside the said award passed by the sole Arbitrator. Learned Sub-Judge, after considering the arguments advanced by the counsel for the parties and also after going through the award, confirmed the same and dismissed the application. Hence this appeal by the builder.
(3.)ACCORDING to the counsel for the appellants, the learned Arbitrator dealt with the issues which are beyond the agreement and thus, the learned Arbitrator has misconducted himself by travelling beyond the terms of the agreement; especially the finding with regard to the 7th floor is totally misconceived for the reason that the learned arbitrator has himself held that 7th floor was not the subject-matter of the agreement. In short, counsel for the appellants, while pointing out the various findings of the learned Arbitrator, would submit that the findings under the award were perverse as they are beyond the scope of the agreement and as such, it should be suitably modified by giving proper protection to the builder in consonance with the agreement.