Punjab-Haryana High Court
Haryana State Electricity Board vs Sunil Engineering Works on 29 June, 1998
Equivalent citations: AIR1998P&H296, (1998)120PLR97, AIR 1998 PUNJAB AND HARYANA 296, (1998) 120 PUN LR 97, (1998) 33 ARBILR 339, (1998) 3 ICC 297, (1998) 4 RECCIVR 15
JUDGMENT Sat Pal, J.
1. The petition has been directed against the judgment dated 31-5-1997 passed by the District Judge, Ambala. By this judgment, the learned District Judge has affirmed the findings of the learned lower court on issues No. 1 and 2 and has dismissed the appeal filed by the petitioner Electricity Board. The learned District Judge has further held that the respondent contractor will be entitled to interest at the rate of 12% from the date of the award till its realisation.
2. Briefly states the facts of the case are that Haryana State Electricity Board (hereinafter referred to as 'HSEB') had invited tenders fro the work of manufacturing and supply of pre-cast P.C.C. tiles for western Yamuna canal hydro electric project. M/s. Sunil Engineering Works (hereinafter referred to as the Contractor) submitted its tender which was accepted by HSEB and the work was allotted to it on certain terms and conditions. The work was completed on 28-12-1984. Thereafter the contractor served a demand notice dated 24-10-1988 (Ex. A-4) on HSEB by which it raised certain claims for the recovery of the amount.
3. Since the amount claimed vide demand notice dated 24-10-1988 was not paid to the contractor by HSEB, the contractor filed an application under Section 20 read with Section 8 of the Arbitration Act (hereinafter referred to as 'the Act') for appointment of an Arbitrator as per arbitration clause of the agreement between the parties. As per Clause 25(A) of the agreement the dispute between the parties was to be referred to the sole arbitration of Superintending Engineer HSEB Western Yamuna Canal Hydro Electricity Project, Yamuna Nagar. The aforesaid Clause 25-A of the agreement reads as under :
"Clause 25-A - If any question, difference or objection whatsoever shall arise in any way connected with or arising out of this instrument or the meaning or operation or any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter is hereinbefore provided for and has been so decided, every such matter including whether its decision has been otherwise provided for S/C and/or/whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights and obligation of the parties as the result of such termination shall be referred for arbitration to the Superintending Engineer, HSEB Western Yamuna Canal Hydro Electric Project, Yamuna Nagar and his decision shall be final and binding and where the matter involves a claim for or payment or recovery or deduction of money, only the amount if any awarded in such arbitration shall be recoverable in respect of the matter so referred.
"If the matter is not referred to arbitration within the specified period, all the rights and claims under the contract shall be deemed to have been forfeited and absolutely barred."
The learned trial Court vide order dated 9-10-1991 referred the dispute for arbitration to the Superintending Engineer, HSEB Western Yamuna Canal Hydro Electric Project, Budh Kalan, Yamuna Nagar. The said arbitrator was directed to enter upon the dispute at an early date and to pronounce the award within a period of four months from the date of entering upon the reference.
4. Sh. R. L. Sehgal, the sole arbitrator gave his award dated 28-9-1993 awarding Rs. 10.75 lacs to the Contractor with interest at the rate of 12% per annum on the amount awarded from the date of completion of work i.e., 28-12-1984 to the date of award i.e., 28-9-1993. The award was filed in the Court of Civil Judge (SD) Ambala. The contractor made a prayer to make the award, the Rule of the Court. On receipt of the notice HSEB, however, filed objections against the award.
5. On the basis of the objections and reply thereto, the following issues were framed by the learned Civil Judge (SD) Ambala :
(1) Whether the arbitrator has misconducted himself and the impugned award deserve to be set aside ? OPO.
(2) If issue No. 1 is not affirmed, whether the impugned award dated 28-9-1993 pronounced by Sh. R. L. Sehgal S.E./Arbitrator deserves to be made a Rule of the Court ? OPR.
(3) Relief.
6. The learned Civil Judge (SD) Ambala vide his judgment dated 4-10-1996 dismissed the objections filed by HSEB and the award dated 28-9-199 was made Rule of the Court.
7. Aggrieved by the judgment dated 4-10-1996 HSEB filed appeal before the learned District Judge Ambala. The learned District Judge, Ambala vide his judgment dated 31-5-1997 dismissed the appeal filed by HSEB and affirmed the finding on issue Nos. 1 and 2 of the learned trial court. The learned District Judge also allowed interest to the Contractor at the rate of 12% from the date of the award till its realisation. The said judgment dated 31-5-1997, has been challenged by the HSEB in the present petition.
8. Mr. Hooda, the learned AG appearing on behalf of HSEB referred to Section 29 of the Act and submitted that the learned District Judge, Ambala was not right in awarding 12% per annum interest form the date of award. He submitted that the interest could be awarded from the date of decree and not from the date award. In support of his submission, the learned counsel placed reliance on a Division Bench judgment of Bombay High Court in Arjun Dass Narain Dass Advani v. Nar Singh Dass Narain Dass Advani (AIR 1997 Bombay 20.).
9. The learned AG further submitted that in the present case the work was completed on 28-12-1984 and the demand notice sent by the contractor was served on HSEB on 24-10-1988. He, therefore, contended that interest could be awarded from the date of service of demand notice i.e., 24-10-1988 but the learned arbitrator has committed an error in awarding the 12% per annum interest from the date of completion of work i.e., 28-12-1984. In support of this submission, the learned counsel placed reliance on a Division Bench judgment of Madhya Pradesh High Court in the case of Anand Parkash and others v. State of M.P. (AIR 1996 M.P. 24.).
10. The learned counsel further submitted that the arbitrator in the present case was not appointed in accordance with the terms of the contract. He submitted that the learned trial court was bound to appoint the arbitrator specified and named in arbitration agreement and not any other person. In this connection he referred to a judgment of the Supreme Court in S. Rajan v. State of Kerala (AIR 1992 SC 1918 = 1992(2) Arb. LR 281.),
11. The learned counsel for HSEB further submitted that the award was a non-speaking award and as such it was contrary to statutory provisions and the express terms of the agreement.
12. The learned counsel further submitted that even if under the agreement clause the award could be non-speaking one, even then the learned arbitrator had committed error in awarding the claims which were beyond the terms of the contract.
13. Regarding Claim No. 1 which pertains to payments of less tiles than actually supplied, the learned counsel submitted that under Clause 13.6 of the contract if a file was found damaged/cracked the same could be rejected by the Engineer Incharge and such rejected units (tiles) were not to be paid for.
14. Regarding Claim No. 2, the learned counsel submitted that the contractor had made this claim per bag basis in place of weighment basis. In this connection he referred to the letter dated 8-10-1985 and submitted that it was clearly stated in this letter that the cost of cement shall be recovered per bag basis.
15. Regarding Claim No. 3, which pertains to reimbursement of additional cement used by the Contractor, the learned counsel referred to Clause 8.1 of the agreement and submitted that contractor was required to get the mixed designed by some reputed government laboratory and the design mix was to be submitted to the Engineer Incharge for his approval and since this was not done, the contractor was not entitled to claim any amount under this head.
16. Regarding Claim No. 4 which pertains to the recovery of cement of penal rates, the learned counsel referred to Clause 31(i)(a) and submitted that the Contractor was not entitled to recovery any amount of this claim.
17. Regarding Claim No. 8 which pertains to extra expenditure incurred for carriage and stacking tiles, the learned counsel submitted that this claim was covered under the head "measurement and payment" and no extra amount could be charged.
18. Regarding Claim No. 10 which pertains to non supply of power and electricity, the learned counsel referred to Clause 20 of the Terms and Conditions of supply applicable to consumers and submitted that under the clause HSEB was not liable for any claims for loss, damages or compensation arising out of failure or shortage of supply for such failure or shortage was due either directly or indirectly to war, mutiny, civil commotion not strike lock out etc.
19. Regarding Claim No. 11 which pertains to suspension of work, the learned counsel submitted that there was no clause in the contract for allowing compensation on this account.
20. In support of the above submission, the learned counsel placed reliance on two judgment of the Supreme Court in Continental Construction Company Ltd. v. State of M.P. (AIR 1988 SC 1166 = 1988(1) Arb. LR 400.), Associated Engineering Company v. Government of Andhra Pradesh (AIR 1992 SC 232 = 1991(2) Arb. LR 180.), and a Full Bench judgment of Kerala High Court in Govt. of Kerala v. V. P. Jolly (AIR 1992 Kerala 187.).
21. The learned counsel of HSEB further submitted that the learned arbitrator misconducted himself having continued to associate himself with the arbitration proceedings after 17-6-1993 when he was issued charge sheet by HSEB. He further submitted that when the contractor filed an application under Section 8 and Section 20 of the Act for appointment of the arbitrator, the learned arbitrator had filed the written statement in that case under his own signature. He, therefore, contended that on this ground also, the learned arbitrator should have refused to act as an arbitrator. In support of his submissions, the learned counsel placed reliance on a judgment of the Supreme Court in Food Corporation of India v. Veshno Rice Mills (AIR 1989 SC 1263.).
22. The learned counsel of HSEB referred to Clause 5(a) of the agreement and submitted that the contractor was required to deliver in the office of the Executive Engineer on or before the 10th day of every month during the continuance of the work, return showing details of any work claimed for as extra, and such return was to contain the value of such work as claimed by the Contractor. He, however, submitted that within this prescribed period, the Contractor did not lodge any claim till the completion of the work (i.e., 28-12-1984). He therefore, contended that the contractor could not make any claim for recovery of the amount after the completion of the work.
23. Mr. R. P. S. Ahluwalia, the learned counsel appearing on behalf of the contractor submitted that under Section 29 of the Arbitration Act, the Arbitrator could award future interest till the date of the decree or the date of payment whichever was earlier. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in State of Orissa v. B. N. Aggarwala (AIR 1997 SC 925 = 1997(1) Arb. LR 612). The learned counsel further submitted that in the said judgment, the Supreme Court also held that the Arbitrator had the jurisdiction to award pre-reference interest in case it arose after the Interest Act, 1978, has become applicable (i.e., with effect from 19-8-1981). It was also observed in this case that the Arbitrator had the power to award pendente lite interest also. The learned counsel, therefore, contended that there was no merit in the arguments, submitted by the learned counsel of HSEB with regard to the interest awarded by the learned Arbitrator and also by the learned District Judge, Ambala.
24. Dealing with the arguments of the learned counsel of HSEB that the interest could be awarded from the date of service of the demand notice, the learned counsel of the contractor referred to a judgment of the Supreme Court in B. V. Radhakrishnan v. Sponge Iron India Limited (AIR 1997 SCW 1423 = 1997(1) Arb. LR 412.), and submitted that in this case Supreme Court has held that interest has to be awarded from the date mentioned in the notice and not from the date of notice. The learned counsel submitted that in the notice, the interest has been claimed with effect from the date of completion of work i.e., 28-12-1984 and as such there was no infirmity in grant of interest by the learned Arbitrator.
25. Dealing with the contention raised by the learned counsel of HSEB that the award was required to be speaking one, the learned counsel of the contractor submitted that there was no express term in the agreement that the award should be a reasoned one. He contended that the arbitrator was not obliged to give reasons unless specifically required by the terms of contract. In support of this submission the learned counsel placed reliance on two judgments of the Supreme Court in Raipur Development Authority v. Chokamal Contractors (AIR 1990 SC 1426 = 1989(1) Arb. LR 430.), Secretary, Irrigation Department, Govt. of Orrisa v. G. C. Roy (AIR 1992 SC 732 = 1992(1) Arb. LR 145.). He also submitted that on this point even no objection was raised by the petitioners in their objection petition filed under Section 30 of the Act.
26. With regard to the contention of the learned counsel of HSEB that the Arbitrator had misconducted himself by his continuing as Arbitrator even after he was issued charge sheet for misconduct on 17-6-1993, the learned counsel submitted that the petitioner Board did not raise any objection during the proceedings before the arbitrator to the effect that he should not continue as Arbitrator after the issue of the charge sheet. On the contrary, the petitioner. Board continued participating in the proceedings before the Arbitrator. He, therefore, contended that the petitioner cannot be permitted to raise objection as to why the arbitrator continued the proceedings after the issue of the charge-sheet. In support of this submission, the learned counsel placed reliance on two judgments of the Supreme Court in Prasun Roy v. The Calcutta Metropolitan Development Authority (AIR 1988 SC 205 = 1987(2) Arb. LR 196.), and Neel Kantan and Brothers Construction v. Superintending Engineer, National Highway Salem (AIR 1988 SC 2045 = 1989(1) Arb. LR 34.).
27. With regard to the contention of the learned counsel of HSEB that under Clause 5-A, the contractor ought to have filed his claim within seven days or cause of action, the learned counsel submitted that this objection was not even raised by the HSEB in their petition filed under Section 30 of the Act and as such they cannot be permitted to raise this objection in the revision petition. The learned counsel further submitted that once the reference to Arbitrator was claimed by the contractor within three years, the claim of the contractor could not be rejected under Clause 5-A. In support of this submission, the learned counsel placed reliance on a judgment of the Supreme Court in Union of India v. L. K. Ahuja and Company (AIR 1988 SC 1172 = 1988(1) Arb. LR 375.).
28. With regard to the contention of the learned counsel of HSEB that the learned Arbitrator had committed error in awarding Claims No. 1,2,3,4,8,11,18 and 19, the learned counsel of the contractor submitted that in the present case, the award was a non-speaking one and as such the High Court in its jurisdiction under Section 115 C.P.C. should not go into the merits of these claims. He submitted that the High Court should not examine the matter as a regular appellate court. In support of his submission, the learned counsel placed reliance on the judgment. B. V. Radhakrishnan (supra). He, however, submitted that in any case the amount awarded by the Arbitrator under the said claim cannot be said to be beyond the terms of contract.
29. With regard to Claim No. 1, the learned counsel submitted that under Clause 13.6 of the agreement broken tiles were to be removed from the site by the contractor to remove the tiles despite request letter (copy Annexure 13/1). He submitted that the letters Annexure 32/1, 33/1 and 34/1 showed that the petitioner had decided to utilise broken tiles for other purposes.
30. With regard to Claim No. 2, he submitted that as per Clause 4.1 the petitioner Board was to supply cement of specification and as per Clause 9.2 each bag of cement should contain 50 kg. plus weigh of each bag ISI mark, but the oared supplied bags containing less quantity of cement which was admitted by the Board vide letter Annexure 39-C.
31. With regard to Claim No. 3, the learned counsel submitted that use of 72 kg of cement each per hundred tiles was approved by the competent authority but the Board supplied low quantity of cement resulting in consumption of more cement i.e., 75 to 78 kg. per hundred tiles and in his connection he referred to the letter Annexure 8/1.
32. With regard to Claim No. 4, the learned counsel referred to letter Annexure 8/1 and submitted that under Clause 31(1)(a) if the consumption was 5% or less then no recovery was to be effected and it was more than 5% recovery was to be effected.
33. Regarding Claim No. 8, the learned counsel submitted that as per Clause 15(i) and 16(i), the Board was to provide 20 acres of space for stacking of tiles and material but the Board did not provide the specified land. In this connection he referred to Annexure 39-C and Annexure 8/1.
34. With regard to Claim No. 10, the learned counsel submitted that as per Clause 1, uninterrupted power was to be supplied by the Board but vide letter Annexure 39-C, the Board had admitted that it could not maintain the regular supply and the contractor had to suffer on this account.
35. With regard to Claim No. 11, the learned counsel submitted that for non-supply of quality cement and non-supply of uninterrupted power, the contractor had to suspend work due to no fault on his part.
36. As regards Claim Nos. 18 and 19, the learned counsel submitted that trading accounts prepared by the Chartered Accountant were submitted by the contractor showing various losses suffered on account of violation of terms and conditions by the Board.
37. The learned counsel for the contractor relying on the submissions made herein contended that the petition being without any merit, be dismissed.
38. I have given my careful consideration to the submissions made by the learned counsel of the parties and have perused the records.
39. As regards the claim of the contractor for prereference, pendente lite and future interest, reference may be made to a judgment of the Supreme Court in the case of B. N. Agrawalla (supra). In this case the Supreme Court observed as under :
"In view of the aforesaid decision there can now be no doubt with regard to the jurisdiction of the arbitrator to grant interest. In principles which can now be said to be well-settled are that the arbitrator has the jurisdiction to award pre-reference interest in cases which arose after the Interest Act, 1978 has become applicable. With regard to those cases pertaining to period prior to the approcability of the Interest Act, 1978, in the absence of any substantive law, contract or usage, the arbitrator has no jurisdiction to award interest. For the period during which the arbitration proceedings were pending in view of the decision in G. C. Roy's case (supra) and Hindustan Constructions Limited case decision in G. C. Roy's case (supra) and Hindustan Construction Co. case (supra) the arbitrator has the power to award interest."
*** *** *** *** "The correct procedure which should be adopted by the arbitrator is to award future interest till the date of decree or the date of payment, whichever is earlier."
"Under section 29 of the Arbitration Act, the Court can, ever where the arbitrator has awarded interest from the date of the award till the date of payment, disallow interest from the date of the decree or determine a different rate at which the interest is to be paid or confirm the grant of interest as awarded in the award. When the Court does not modify the award with regard to grant of interest from the date of the award upto the date of payment, the effect would be as if the court itself has granted interest from the date of the decree till the date of payment at the rate which was determined by the arbitrator. The future interest would be regarded as having been ordered to be paid under Section 29 of the Arbitration Act when the Court does not modify the award in this respect.
*** *** *** *** It may be relevant to note here that in the above judgment almost all the earlier judgments have been noticed. Further from the judgment, it is clear that the Arbitrator has the power to grant interest for pre-reference period with effect from 19-8-1981 when the Interest Act, 1978 came into force. Further the arbitrator can award future interest till the date of the decree or the date of payment whichever is earlier but under Section 29 of the Act, the Court can disallow interest from the date of decree or determine a different rate on which the interest is to be paid or confirm the grant of interest as awarded in the award.
40. In view of the law laid down by the Supreme Court in the above mentioned case, I do not find any substance in the contention raised by the learned counsel of HSEB that the interest could have been awarded to the contractor from the date of decree and not from the dated of award. I also do not find any merit in the contention urged by the learned counsel of the HSEB that the interest could be awarded by the arbitrator from the date of service of demand notice (i.e., 24-10-1988) and not from the date of completion of work (28-12-1984), in view of the law laid down by the Supreme Court in the case of B. V. Radhakrishnan (supra). In this case it has been held by the Apex Court that interest has to be awarded from the date mentioned in notice and not from the date of notice.
41. As regards the contention of the learned counsel of HSEB that the arbitrator in the present case was not appointed in accordance with the terms of the contract, I do not find any substance in this contention. In fact the Arbitrator in the present case was appointed by the learned trial court in terms of the arbitration Clause 25-A which was been re-produced in the earlier part of the judgment.
42. I do not find any merit also in the contention urged by the learned counsel of the HSEB that the Arbitrator misconducted himself having continued to associate himself with the arbitration proceedings after 17-6-1993 when he was issued charge sheet by HSEB and further he had filed the written statement in the proceedings initiated on the application filed by the contractor under Sections 8 and 20 of the Act for appointment of arbitrator. It was not disputed before me that all the aforesaid facts were in the knowledge of HSEB but despite this, HSEB never raised any objection before the Arbitrator not to proceed in the arbitration proceedings nor any application was filed by the HSEB for change of the arbitrator. Having participated in the proceedings before the arbitrator, HSEB cannot be permitted to raise this objection. In this connection reference may be made to the judgment of the Supreme Court in the case of Neel Kantan and Brothers Construction (supra). In this case the Apex Court observed as under :
"This objection cannot be entertained. If the parties to the reference either, agree before hand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings."
43. There is no merit in the contention of the learned counsel of the petitioner that the award is bad as it does not contain the reasons. It was not disputed before me that there was no clause in the agreement which stipulated to give the reasons by the Arbitrator. In the absence of such a clause, the Arbitrator was not obliged to give reasons. The view I have taken finds full support from two judgments of Constitution Benches of the Supreme Court in the cases of Raipur Development Authority (supra) and G. C. Roy (supra).
44. Another contention raised by the learned counsel of HSEB that under Clause 5(a) of the agreement, the contractor was required to submit his claims for any extra amount on or before the tenth day of every month during the continuance of the work, is again without any substance. Firstly this objection was not raised before the Arbitrator or even in the objection petition filed by HSEB under Section 30 of the Act. Even otherwise, the point as to whether any claim was barred by limitation was arbitrable and could have been taken before the Arbitrator but this point cannot be permitted to be urged in the jurisdiction of this Court under Section 115 C.P.C. In this connection reference may be made to the judgment of the Supreme Court in the case of L. K. Ahuja and Company (supra). In this case it was observed as follows :
"It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist is a matter which is arbitrable."
45. Before dealing with the contentions raised by the learned counsel of HSEB with regard to Claims No. 1,2,3,4,8,11,18 and 19, it will be relevant to refer to judgment of the Supreme Court in Municipal Corporation of Delhi v. Jaggan Nath Ashok Kumar and others (AIR 1987 SC 2316.). In this case it was held that appraisement of evidence by the Arbitrators ordinarily never a matter which the court questions and considers and it may be possible that on the same evidence, the court may arrive at a different conclusion that one arrived at by the Arbitrator but that by itself is no ground for setting aside the award. Similarly in Hindustan Construction Company Limited v. Government of Orissa (1995(3) SCC 8 = 1995(2) Arb. LR 1) the Supreme Court observed as under :
"It is well known that the Court while considering the question whether the award should be set aside, does not examine the question as an appellate Court. While exercising the said power, the Court cannot reappreciate all the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made. Such award can be set aside on any of the grounds specified in Section 30 of the Act."
The observation of the Supreme Court in the above two cases were re-affirmed by the Supreme Court in the case of B. V. Radhakrishnan (supra).
46. Bearing in mind the principles laid down by the Supreme Court in the above said cases, it has to be examined as to whether there is any merit in the contentions raised by the learned counsel of HSEB.
47. Claim No. 1 is with regard to receiving payments of less tiles than actually supplied. Under Clause 13.6 of the agreement, broken tiles were to be removed from the site by the contractor but the Board did not allow the contractor to remove these tiles despite his request letter. On the contrary, the letter dated 17-4-1986 (Annexure 33/1) sent by Direct (Const.) WYC Project Budh Kalan to the Chief Engineer (Hydel) WYC HE Project Yamuna Nagar shown that he had taken a decision that these broken tiles be used on an appropriate occasion for other purpose. In the letter dated 16-1-1986 the Executive Engineer/PH IV WYC HE. Project Budh Kalan, had written to the Senior Accounts Officer/Hydel HSEB, Yamuna Nagar that the broken tiles were not being allowed to be disposed of by the contractor as they are proposed to be utilised in the rafting channel. From the aforesaid facts, it cannot be stated that the said claim in not covered by the agreement.
48. Claim No. 2 is regarding recovery of cement per bag basis in place of weighment basis. As per Clause 4.1. of the agreement. HSEB was to supply cement on specification as per clause 9.2 of IS-269 each bag of cement containing 50 kg. weight of each bag. The claim of the contractor is based on the allegations that the HSEB supplied bags containing less quantity of cement. The said claim was admitted by the HSEB before the Arbitrator vide Annexure HR-12. Thus, this claim is also covered by the agreement.
49. Claim No. 3 is with regard to reimbursement of additional cement used by the contractor. The case of the contractor with regard to this claim is that use of 72 kg. of cement per hundred tiles was approved by the competent authority but since the quality of the cement supplied by the Board was not good, it resulted in the consumption of more cement i.e., 75 to 78 kg per hundred tiles. Thus, this claim is also covered by the agreement.
50. Claim No. 4 is regarding recovery of cement of penal rates. Under Clause 31(1)(a) factual consumption exceeds the theoretical consumption by 5% or less, no action was to be taken but if the actual consumption exceeds the theoretical consumption by more than 5% recovery was to be made for the excessive consumption of materials at 2.5 times the issue rate plus storage charges for cement and at two times the issue rate to storage charges for other materials. The contractor claimed a sum of Rs. 82,467/- under this claim on the ground that the Board deducted the amount from the bills of the contractor contrary to the said clause. Since this claim was also based on a clause of the agreement, it cannot be said this claim is not covered by the agreement.
51. Claim No. 8 is with regard to extra expenditure incurred for carriage and stacking of tiles. As per Clauses 15.1 and 16.1, the Board was to provide 20 acres of space for stacking of tiles and materials and manufacturing etc. The contractor made this claim on the ground that Board did not provide the specified space. Thus, this claim was also covered by the agreement.
52. Claim No. 10 is with regard to non-supply of power and electricity particularly with regard to power failure. As per clause I of Special Conditions of contract, Engineer Incharge was to provide electricity against payment of HSEB normal tariff for the energy consumed at the job side at one point of supply. Relying on this clause, the contractor submitted his claim under Claim No. 10 on the ground that HSEB could not maintain the regular supply of electricity and the contractor had to suffer in that account. Thus, this claim is also covered by the agreement. Clause 20 of the Terms and Conditions relied upon by the learned counsel of HSEB are applicable only if failure or shortage of supply is due to war, mutiny, Civil Commotion etc. and not otherwise.
53. Claim No. 11 is with regard to damages, claimed by the contractor on account of suspension of work. The contractor made this claim on the ground that HSEB had violated various terms and conditions of the contract such as non-supply of quality cement, non-supply of uninterrupted power, not providing sufficient space and thus the contractor had to suspend the work for these alleged violations. The allegations of the contractor were even admitted by the Executive Engineer Incharge of the Project in his letter dated 16-3-1984 (copy Annexure 8/1) addressed to the Director (Construction) of the Project. Thus it cannot be said that this claim is not covered by the agreement.
54. Claims No. 18 and 19 are with regard to loss of profit and overrun charges after the contract period (i.e., 5-10-1981) as damages for the breach of contract. These claims are also based on the allegations that the terms of the contract were not complied with by the HSEB. These claims thus also cannot be said to be not covered by the agreement.
55. From the facts stated herein above, it is clear that the claims made by the contractor before the Arbitrator arise from the contract between the parties. In view of this, the judgments in the cases Continental Construction Company Ltd. (supra), Associated Engineering Company (supra) and V. P. Jolly (supra) are not applicable to the facts of the present case. It is well settled that while considering the question whether the award should be set aside, the court cannot re-appreciate all materials on the record for the purposes of recording a finding whether in the facts and circumstances of a particular case, the award in question could have been made.
56. For the reasons recorded herein above, I do not find any merit is this petition. Accordingly, the petition is dismissed. There will be no orders as to costs.
57. Petition dismissed.