Jharkhand High Court
Bharat Coking Coal Ltd. vs H.P. Biswas & Co. on 20 December, 2001
JUDGMENT Gurusharan Sharma, J.
1. On 5.5.1980 appellant issued work Order No. 817 for Rs. 13,96,000/- to the respondent. It was for construction of hundred units of minors quarters under N.H.S. Scheme @Rs. 13,960/- per unit.
2. In connection with the paid work order an agreement between the parties was executed on 9.2.1982, wherein enhanced value of work was mentioned at Rs. 16,45,000/- i.e. @Rs. 16,450/- per unit.
3. According to appellant, after completion of work entire amount of Rs. 16,45,000/-, as per agreement, was paid to the respondent. No objection whatsoever was raised by the respondent with regard to final bill for the work done.
4. According to respondent, pursuant to work order dated 5.5.1980, site of the work could not be handed over due to various hindrance in executing the work. As such the department from time to time granted extension for completion of the work and ultimately it was completed on 31.12.1984. Respondent claims to have suffered loss on various grounds including delay in completion of work.
5. Respondent claimed that on receipt of work order construction camps for staff and labours were set up, necessary labours-skilled and unskilled were engaged, tools, plants, machineries and equipments necessary to complete the work within the stipulated period of nine months were brought. Advance payments were made for the materials necessary for the work. Lay out of foundation was approved by appellant and thereafter excavation of foundation trenches were started, but it was stopped by the villagers, who claimed that the lands belonged to them.
6. It was further claimed that the work could be restarted only on 1.9.1981 and the respondent, in the meantime, had to suffer for idle establishment, idle labour, idle materials, idle men, machineries, tools, plants and equipments and was put to losses.
7. Respondent vide letter dated 25.3.1991 demanded escalation of the quoted rates. Progress of the work also suffered for want of supply of water, which was not done by appellant at the work site as per the agreement.
8. Respondent accepted the final bill without prejudice to its rights to claim further amount for the loss suffered on various counts. Even in the measurement book it was specifically mentioned that respondent was accepting the amount without prejudice to its rights.
9. Clause 10 of the agreement dated 9.2.1982 was the arbitration clause. Under the said clause, respondent filed an application under Section 8 of the Arbitration Act, 1940, and ultimately the Apex Court by order dated 20.3.1995 passed in Civil Appeal No. 3504 of 1992 appointed Sri P.N. Mathur, Director Technical (O & W). Bharat Coking Coal Limited, as sole Arbitrator who submitted a non-speaking Award dated 19.4.1996 for a sum of Rs. 11.45.500/-together with interest (c)15% per annum. The said amount was over and above the amount of Rs. 16,45,000/- already paid by appellant to the respondent.
10. It is true that it is not open to the Court to probe the mental process of the Arbitrator and speculate, where no reasons are given by the Arbitrator, as to what impelled him to arrive at his conclusion. In the present Award the Arbitrator has not spoken his mind indicating why he has done, what he has done. He has narrated only how he came to make the Award.
11. The appellant filed objection under Sections 30 and 33 of he Act to the Award in question, which has been rejected by impugned judgment/order dated 30.5.1998 by the learned subordinate Judge, Dhanbad and award was made rule of Court.
12. Mr. Mehta, counsel for the appellant, submitted that the Arbitrator had no jurisdiction or authority to decide the claims beyond the purview of arbitration clause. In its counter statement filed before the Arbitrator, the appellant had highlighted its objections.
13. In the present case, the Arbitrator has not decided as to whether some of the disputes raised by the respondent were arbitrable or not and a lump-sum amount has been awarded by him.
14. Mr. Mehta further submitted that no doubt there are certain limitations in examining non-speaking award, but there is no complete bar in examining if the award was not in terms of the reference or in terms of the contract. In the present case, the Award, according to Mr. Mehta was not in terms of the contract and some of the claims were beyond the purview of the Arbitration. This Court, according to Mr. Mehta, can very well look into the arbitration agreement to decide as to whether those disputes were arbitrable or not.
15. I find that respondent claimed compensation for the loss of account of infructuous over-head establishment etc. right from mid May, 1980 upto mid December, 1984 @ Rs. 10,00/- per month. It also claimed compensation for the idle equipments, machineries, shutterings materials, tools and tackles etc. for the same period @ Rs. 5000/- per month. Increased cost for execution of the works done beyond 31.5.1982 upto 31.12.1982 due to the various increases in the price of non-stipulated materials, labour services etc. @15% and for the period from 31.1.1983 upto 31.12.1984 (c)30% was also claimed.
16. The contract in question contained in arbitration Clause (Clause 19) which is quoted below :
"Provided always that in case any, question, dispute or difference shall arise between the engineer and the contract as to what, additions if any ought in fairness to bekade to the amount of the contract by reason of the works being delayed though no fault of the contractor or by on account of any directions or requisition of the Engineer involving increased cost they contractor beyond the cost properly attending the carrying out of the contract according to the true intent and meaning of the signed drawings and specification or as to the works been duly completed or as to the construction of these presents or as to any other matter or thing arising under or out of this contract except as to matter left during the progress of the works to the sole decision or requisition of the Engineer under Clauses No. 1, 5, 9 and 10 the case the contractor shall be dissatisfied with any certificate of the Engineer under Clause 7 or under the provision in Clause 14 or in case he shall withhold or not give any certificate to which he may be entitled then such question dispute difference or such certificate or the value or matter which should be certificate as the case may be as to be from time to time referred to the arbitration and final decision of an arbitrator to be chosen by both parties to the contract. The award of such referee is to be equivalent to a certificate of the Engineer and the contractor is to be paid accordingly."
17. In the present case I have not been shown any clause of the contract which prevented the Arbitrator on examining contractor's claim which were put before him. In K.R. Raveendranathan v. State of Kerala 1998 (9) SCC 410. Reliance was placed decision to Hindustan Construction Co. Ltd. v. State of Jaxnmu and Kashmir, (1992) 4 SCC 217. It was held that the Court by purporting to construe the contract cannot take upon itself the burden by saying that it was contrary to the contract and as such beyond jurisdiction.
18. There is a distinction between error apparent on the face of award and lack of jurisdiction. Only in a speaking award the Court can look into the reasoning of arbitrator. In non-speaking award it is not open to the Court to probe the mental process of arbitrator or a speculate as to that impelled him to arrive at his conclusion.
19. It was not demonstrated before me that on interpretation of contract the claims which were raise by the contractor before the arbitrator, would not arise under the contract and hence they were beyond the jurisdiction of arbitrator.
20. I. therefore, find no reason to interfere with the award as well as impugned judgment/order, whereby the said award was made rule of Court.
21. In the result the appeal is dismissed, but without costs.