Andhra HC (Pre-Telangana)
State Of A.P., Superintending ... vs K. Krishnam Raju (Died) Per L.Rs. 3 To 5) ... on 11 September, 2003
Equivalent citations: 2004(1)ALT769, 2004(1)ARBLR566(AP)
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. This Civil Miscellaneous appeal and the Civil Revision Petition filed by the State of Andhra Pradesh and its officials of Irrigation Department arise out of the common judgment passed in O.P. No. 329 of 1987 and O.S. No. 1684 of 1987 on the file of II Senior Civil Judge, City Civil Court, Hyderabad, whereby the learned Senior Civil Judge made the Award dated 08.01.1987 a rule of the Court. The C.M.A. is filed against the order passed in O.P. No. 329 of 1987 on the file of II-Additional Senior Civil Judge, City Civil Court, Hyderabad. The C.R.P. is filed against the judgment and decree passed in O.S. No. 1684/87, on the file of the same Court. By a common judgment dated 29.06.1999 the learned Senior Civil Judge dismissed O.P. No. 329/87 and decreed O.S. No. 1684/97 making the Award dated 08.01.1987 a rule of the Court.
2. O.S. No. 1684 of 1987 was filed by K. Krishnam Raju on the file of II Senior Civil Judge, City Civil Court, Hyderabad under Sections 14 and 17 of the Arbitration Act to make the Award dated 08.01.1987 a rule of the Court and pass a decree in terms of the Award. The said K. Krishnam Raju died pending trial of the suit and plaintiffs No. 2 to 4 came on record as per order dated 15.03.1999 in I.A. No. 250/88. D-1 and D-2 in the said suit viz. Superintending Engineer, Nagarjuna Sagar Left Canal Circle (NSLC) Nuzvid and Executive Engineer, N.S. Canals Vijayawada filed O.P. No. 329 of 1987 under Sections 30 and 33 of the Arbitration Act to set aside the aforesaid Award dated 08.01.1987.
3. The facts of the case in brief leading to filing of the suit and the O.P. are as follows :
The Superintending Engineer, NSC Nuzvid called for tenders for excavation of Machavaram Major from KM 2.00 to 4.00. The main nature of the work was excavation of canal in specified soil strata to specified levels and sections and also consolidation of banks. The plaintiff hereinafter referred to as the Contractor, submitted his tender on 24.04.1978. The defendants, hereinafter referred to as department, accepted the tender as per the letter dated 11.07.1978. The value of the work was estimated at Rs. 2,48,352.50 or such other sum as may be required at under the terms of contract for the construction, completion and maintenance of the works at the time and in the manner prescribed by the contract. The time stipulated for completing the work was six months from the date of handing over the site. The contractor commenced the work on 16.09.1978 and could not complete the work within the stipulated time. The contractor left the site without completing the work. Some dispute arose between the contractor and the department with regard to claims put forth by the former. The contractor filed O.P. No. 296/85 on the file of II-Additional Judge, City Civil Court, Hyderabad for appointment of an Arbitrator and the said O.P. was allowed and Sri T. Krishna Murthy, Retd. Chief Engineer was appointed as sole Arbitrator. The Arbitrator conducted enquiry and passed Award on 08.01.1987. The contractor filed O.S. No. 1684/1987 on the file of II-Additional Judge, City Civil Court, Hyderabad to make the Award a rule of the Court. The department filed O.P. No. 329/1987 on the file of II-Additional Judge, City Civil Court, Hyderabad to set aside the Award. The learned II-Additional Judge directed the Arbitrator to assign reasons for awarding Rs. 1,30,058 under various claims to the contractor. The Arbitrator furnished detailed reasons on 26.12.1990 for awarding Rs. 1,30,058 under various claims. The Department filed objections to the reasoned Award and whereas the contractor filed rejoinder. The learned II Senior Civil Judge heard the suit and the O.P. together and decreed the suit and dismissed the O.P. by judgment dated 29.06.1999 making the Award as a rule of the Court. Feeling aggrieved by the judgment and decree passed in O.S. No. 1684 of 1987 and O.P. No: 329/1987 on the file of II Additional Judge, City Civil Court, Hyderabad, the department filed C.R.P. No. 1919 of 2000 and C.M.A. No. 791/2000.
4. The parties hereinafter are referred to as they are arrayed in C.M.A. No. 791/2000.
5. The learned Government Pleader for the appellants-Department contends that the lower Court failed to see that the Arbitrator decided the matter strikingly outside his jurisdiction and that he out-stepped the confines of the contract and wandered outside the designated area. It is also contended by him that the lower Court failed to notice that as per condition No. 13 of Schedule of quantities of supplemental specification of earth work, full tender rate is payable only if the respondents-contractor did the work completely, and not when he abandoned the work. The main contention urged by the learned Government Pleader is that in view of Clause 16.1.1 of the agreement, the contractor is not entitled for any compensation on the ground of delay in handing over the site and the Award of compensation under various heads by the Arbitrator is illegal and without jurisdiction. He also contends that the Award of interest on various amounts is illegal. He placed reliance on the following decisions in support of his contentions ;
(1) Associated Engineering Co. v. Govt. of A.P., . (2) Steel Authority of India Ltd. v. J.C. Budharaja, 1999 AIR SCW 3258=1999(3) Arb. LR 335 (SC). (3) General Manager, Northern Railways v. Sarvesh Chopra, .
In the first cited decision, the Supreme Court held that the Arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. His sole function is to Arbitrate in terms of the contract. His authority is derived from the contract and is governed by the Arbitration Act, which embodies principles derived from a specialized branch of the law of agency. If he has remained inside the parameters of the contract and has construed the provisions of the contract, his Award cannot be interfered with unless he has given reasons for the Award disclosing an error apparent on the face of it. In the second cited decision, the Supreme Court held that if the Arbitrator grants damages or compensation ignoring the specific prohibition in the contract to claim such damages or compensation, the Award can be said as illegal on the ground that the Arbitrator travelled beyond his jurisdiction. In the third cited decision, the Supreme Court held that while dealing with a petition under Section 20 of the Arbitration Act, 1940 the Court is obliged to examine whether a difference which is sought to be referred to Arbitration is one to which the Arbitration agreement applies. If it is a matter excepted from the Arbitration agreement, the Court shall be justified in withholding the reference.
6. Learned counsel for the contractor contends that the Award can be set aside only when it is vitiated by error apparent on the face of its record and where the Arbitrator exceeds his jurisdiction. He further contends that as the lower Court on thorough examination of the material placed on record thought it fit not to interfere with the Award and accordingly made the Award as a rule of the Court and so the same is not liable to be interfered in this appeal. It is also contended by him that the Arbitrator is competent to Award interest pendente lite if the terms of the agreement do not exclude the jurisdiction, and the compensation in the form of loss and profit also could be legitimately awarded if the other parties disable the contractor from carrying the work fully due to breach of contract and obligation and that as the appellant-department committed breach of contract, the Arbitrator rightly awarded interest and also compensation which were upheld by the lower Court and, therefore, the same are not liable to be interfered in the appeal. He placed reliance on the following decisions :
(1) Hind Construction Contractors v. State of Maharashtra, .
(2) Trustees, Port of Madras v. Engineering Constructions Corporation Ltd., .
(3) Superintending Engineer, R and B Circle v. S. Venkatareddy and Company, 2002(1) An. WR 535 (AP).
In Hind Construction Contractors' case (supra), the Supreme Court held that the question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract. It is further held that where in a contract between a State Government and a Contractor for construction of an aqueduct across a river within the stipulated period of 12 months, power was conferred upon the Executive Engineer to grant extension of time for completion of work on reasonable grounds and further provision was made for levying the recovering penalty/compensation from the Contractor at specified rates for the unfinished work after the expiry of the fixed date, such provisions would exclude the inference that time was intended to be of essence of the contract. The rescission of such a contract on the part of the State Government without fixing any further period making time the essence and directing the Contractor to complete the work within such period, was clearly illegal and wrongful and thereby, the State Government committed a breach of the contract with the result that the security deposit of the Contractor could not be forfeited. In Trustees, Port of Madras's case (supra), the Supreme Court held that in case of a reasoned Award, the Court can interfere if the Award is based upon a proposition of law which is unsound in law. The erroneous proposition of law must be established to have vitiated the decision. The error of law must appear from the Award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the Award. In Superintending Engineer's case (supra), our High Court held that the Award can be set aside only when it is vitiated by error apparent on the face of the record or where Arbitrator exceeded his jurisdiction and that the Arbitrator is incompetent to Award interest pendente lite if the terms of agreement did not exclude his jurisdiction and that the compensation in the form of loss of profit also could be legitimately awarded if the other party is disabled from carrying out fully due to breach of contractual obligation.
7. Before dwelling on the rival contentions of the parties, I feel it apposite to remind of the observation of the Apex Court in Guru Nanak Foundation v. Rattan Singh and Sons, , which is as follows :
"Interminable, time consuming complex and expensive Court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 ('Act' for short). However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimoney that the proceedings under the Act have become highly technical complained by unending prolixity, at every stage providing a legal trap to the unwary informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with "legalese" of unforeseeable complexity. This case ambly demonstrates the same."
The facts speak for themselves. The tender of the contractor was accepted by the appellant-department as per the letter dated 11.07.1978. The period of the contract was six months. The department determined the contract on 05.02.1981 and fortified HMD and FSD by invoking Clauses 16.2.0 of conditions of the contract. The respondent-contractor filed O.P No. 296/95 seeking appointment of Arbitrator and the said O.P. came to be allowed on 09.04.1986. The respondent-contractor claimed Rs. 5,54,160 under various heads before the Arbitrator. The Arbitrator granted the following amounts under heads detailed hereunder :
(1)Labour kept idle due to interruption by the land owner Costs in two seasons 70,320 (2) Work done but not measured 15,411 (3) Refund of deposits withheld 14,542 (4) Amounts outstanding from interim bills 4,318 (5) Loss due to deletion of consolidation work 1,031 (6) Leads and lifts not fully accounted department for payment 1,341 (7) Infructuous staff payment (Expenditure for the State that had to be kept idle for want of work) 12,000 (8) Loss on profit to be compensated 10,195
8. The Arbitrator allowed interest on the aforesaid amounts at 15 percent from 02.09.1986. The appellant-department filed O.P. 329/1987 to set aside the Award. Objections raised by the appellant department for the Award of the Arbitrator are ; that the respondent-contractor himself responsible for not completing the work within the stipulated time in spite of handing over the entire site to him on 16.09.1978; the Arbitrator misconducted himself in the proceedings by ignoring the relevant clauses of the agreement which disentitles the contractor to claim any amount either as compensation or damages ; the Arbitrator travelled beyond the terms of the contract in allowing the claims of the contractor; the terms of the agreement do not contemplate payment of interest on arrears if any payable to the contractor.
9. The Arbitrator examined the documents placed on record by both the parties and recorded a finding that the department committed breach of contract and, therefore, the contractor is entitled to claim Rs. 1,30,058 under various heads. The lower Court on thorough consideration of the Award did not find any material to upset the Award of the Arbitrator and thereby decreed the suit of the contractor by making the Award a rule of the Court.
10. In Sudersan Trading Company v. Government of Kerala, , Apex Court held that the Court cannot substitute its own decision where the amounts had been awarded by the Arbitrator by taking a particular view of the contract. In Superintending Engineer, NSC Circle, Ongole v. B. Subba Reddy, , a Division Bench of this Court was pleased to observe that the Award can be set aside only when it is vitiated by error apparent on the face of record or where the Arbitrator exceeded his jurisdiction and that the Arbitrator is competent to Award interest pendente lite if the terms of the agreement did not exclude his jurisdiction and that the compensation in the form of loss of profit also could be legitimately awarded if the other party is disabled from carrying out the work fully due to breach of contractual obligations.
11. The ambit and scope of Courts under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside an Award passed by the Arbitral Tribunal which is patently illegal or in contravention of the provisions of the Act or any other substantial law governing the parties or against the contract came up for consideration before the Supreme Court in ONGC Ltd. v. SAW Pipes Ltd., . It has been held by the Apex Court that Section 34 read conjointly with other provisions of the Act indicates that the legislative intent could not be that if the Award is in contravention of the provisions of the Act, still however, it could not be set aside by the Court. Holding otherwise would be contrary to the basic concept of justice. If the Arbitral Tribunal has not followed the mandatory procedure prescribed under the Act, it would mean that it has acted beyond its jurisdiction and thereby the Award would be patently illegal which could be set aside under Section 34. Such interpretation of Section 34(2)(a)(v) would be in conformity with the settled principle of law that the procedural law cannot fail to provide relief when substantive law gives the right. The principle is there cannot be any wrong without a remedy. Therefore, if the Award is contrary to the substantive provisions of law or the provisions of the Act or against the terms of the contract, it would be patently illegal, which could be interfered with under Section 34. However, such failure of procedure should be patent affecting the rights of the parties.
12. Learned counsel for the appellants-department contends that the time is of essence of contract and as the respondent contractor has failed to complete the work within the stipulated period, he is not entitled to claim any relief in terms of money and the only course open to the contractor is to seek for appropriate adjustment in completion dates. He refers to Clause 15.1.0 of the conditions of contract which reads as under :
"The attention of the tenderers is directed to the contract requirements as to the time of beginning of work, the rate of progress and the dates for the completion of the whole work and its several parts That rate of progress as defined in the following statements and proportionate value of work done from time to time as will be indicated by the Executive Engineer's certificates of the value of work done will be required. Date of commencement of this programme will be the date on which the site (or premises) is handed over to the contractor (vide statement regarding programme of work). If for unforeseen reasons, the sites are not made available on the stated dates, appropriate adjustment will be made in the completion dates."
It has been the grievance of the contractor that his repeated requests for extension of time became a cry in wilderness and it compelled him to invoke the Arbitration clause in the agreement. The Arbitrator examined the documents placed on record by both the parties and recorded a finding that the appellant-department did not act on the representations of the respondent-contractor seeking extension of time. It is appropriate to refer the relevant portion of the Award and it is thus :
"Records show that the extension was granted upto 16.12.1979, this was futile as full possession of the site was not secured by then even by the department let alone availability to the contractor. Again the contractor had applied for time upto 31.12.1980. The department remained silent without any communication of granting this or not granting. Only after the department secured full possession of the site in October, 1980 they served penal action notices and then determined the contract on 05.02.1981 all the time remaining silent on the application for extension of time sought by the contractor upto 31.12.1980."
It is an admitted fact that the contractor was not provided the entire site at once. It is evident from the letter dated 10.10.1980 and telegram dated 16.10.1980 sent by appellants-department to the contractor. It was only in October, 1980 the appellants-department came into possession of the entire site. The Arbitrator considered the material on record in right perspective and held that it was the appellants-department which committed breach of the terms of the agreement by not providing full site to the contractor to execute the work. It was canvassed by the appellants-department before the lower Court that it was contractor who abandoned the work on 01.12.1979 and, therefore, he was not entitled to claim any amount either by way of damages or compensation. The same contention was urged before the Arbitrator who on thorough examination of the documents placed on record held that the un-interrupted site was not made available to the contractors in October, 1980. It is useful to refer the relevant portion of the Award, which reads as under :
"The arguments at the hearings and the records perused revealed some of the delays and defaults of the department. More particularly in not making the full site available for the performance of contract. The land acquisition proceedings were not completed by the revenue department. So the respondent department were themselves not in possession of the site required. It was pleaded that they had taken advance possession of the lands pending acquisition proceedings and to show this, they produced some certificates of advance possession. This supposed arrangement was only between the respondent department and the revenue department. The other portions namely the land owners of the petitioner contractor did not figure in these certificates. Copies of these also were not furnished to the contractor. Even this so called advanced possession was conditional that the prove and standing crops on these land should not be cut by the P.W.D. This condition rendered such advance possession futile and purposeless. The ground realities were also different. The land owners had obstructed work in their lands until compensation was paid to them. Such obstruction were repeatedly represented by the contractor on 21.11.1978, 05.03.1979 etc. (even though the site was supposed to have been handed over to the contractor on 16.09.1979). It was as date as October, 1980 when the department really came into complete possession of the land vide their letter dated 10.10.1980 and telegram dated 16.10.1980. So the full uninterrupted site was not available to the contractor till October, 1980 and he had to attempt work in small stretches. This is very much on record."
The appellants-department unsuccessfully advanced the same contentions before the lower Court. I do not see any reason to interfere with the findings recorded by the Arbitrator and also the lower Court on this aspect.
13. Learned counsel for the appellants-department contends that the claim of the respondent-contractor deserves to be rejected as the same is not preferred within 15 days from the date of cause of action. He placed reliance on Clause 23 of the conditions of the contract, which read as under :
"(23) Any claim or disputes arising out of the contract should be submitted in writing to the Superintending Engineer, Nagarjunasagar Canals Circle, Nuzvid, Krishna District/Executive Engineer, Nagarjunasagar Canals Division, District within fifteen (15) days from the date of cause of action, so that the points at issue could be immediately verified at site by the Field Officers, facts ascertained and a prompt decision given claims raised well beyond this time limit and raised subsequently at such a distance of time as to make it impossible to verify the facts are, liable to be rejected. The tenderers shall carefully note this stipulation."
The above clause contemplates that the contractor has to put forth his claim or dispute before the Superintending Engineer within 15 days from the date of cause of action so as to enable the concerned authority to verify the site. It is not the case of the appellants-department that because of the respondent-contractor not submitting the claim within 15 days, their field officers could not verify the facts in issue. Therefore, the above referred clause does not come in the way of the Arbitrator adjudicating upon the claims preferred by the contractor.
14. When the site was not available to the contractor on the stated dates what was the course available to the contractor. It is contended by the learned counsel for the appellants-department that the only obligation on the part of the appellants-department in case of delay in handing over the site to the contractor was to make appropriate adjustments in the completion dates. The question of appropriate adjustment arises when the full uninterrupted site was made available to the respondent-contractor. Evidence brought on record clearly establishes that the site was available to the respondent-contractor in piece meal basis and even on piecemeal basis the full site was not provided to him to carry out the work. In these circumstances, it cannot be said that the only recourse available to the contractor is to seek appropriate adjustment in the completion dates. Whether the claim of compensation for not providing the full uninterrupted site to carry out the work is an excepted matter within the terms of the agreement. It is well settled that if the claim comes within the purview of excepted matter, the Arbitrator has no jurisdiction to adjudicate upon such a claim. Clause 25 of the conditions of the contract deals with the disputes and differences between the parties that can be referred to the Arbitrator for adjudication. The matters that are exempted for reference to Arbitrator for adjudication relate to technical. I feel it apposite to refer Clause 25 of the conditions of the contract which reads as under :
"(25) In case of any dispute or difference between the parties to the contract either during the progress or after the competition of the works or after the determination, abandonment, or breach of the contract, or as to the interpretation of the contract or as to any matter or thing arising thereunder except as to the technical matters left to the sole discretion of the Executive Engineer then either party shall forthwith give to the other notice of such dispute or difference, and such dispute or difference shall be and is hereby referred to the panel of Arbitrator as mentioned herein. The panel of Arbitrators for fulfilling duties set forth in the Arbitration clause of Standard Preliminary Specifications shall be....................."
On a plain reading of the above clause there cannot be any difficulty in coming to the conclusion that only technical matters are exempted from the purview of Arbitration.
15. The contractor claimed compensation under the head keeping the labour idle in two seasons for not providing the full uninterrupted site to carry out the work. It is the specific case of the appellants-department that the respondent-contractor left the site after 01.12.1979 and no labour of him remained on the site thereafter. The contractor did not place any record before the Arbitrator to show that the labour engaged by him remained idle on the site for want of work. The claim made by the contractor under two heads viz. loss of labour for want of uninterrupted site and infructuous staff payment were one and the same category. In nutshell the claim of the Arbitrator is that he could not utilize the labour engaged by him to the full extent for want of work and also for interruption of the land owners. The contractor did riot place on record any evidence to show the total number of workers employed by him and the quantum of work turned out by them so as to know whether the workers engaged by him were under-utilised. The Arbitrator without any material on record allowed compensation of Rs. 82,320 (Rs. 44,334 + 25,986 + 12,000) under Claim No. 182 and 9 on the premise that the labour engaged by the contractor remained idle because of the appellants-department not providing the full site to carry out the work. The appellants-department placed on record the material to show the number of labour engaged by the respondent-contractor till March, 1978. As per the particular furnished by the appellants-department labour engaged by the respondent-contractor are as follows :
Month Persons per day October, 1978 177 November, 1978 188 December, 1978 43 January, 1978 36 February, 1978 25 March, 1978 18 The Arbitrator refused to give any credence to the registers produced by the appellants-department before him on the ground that it contained some corrections. As per the terms of the conditions of the contract, it is for the contractor to submit labour reports clearly regarding the labour employed by him for the work to the District Employment Officer. I feel it apposite to refer the relevant Clause i.e. 28 of the conditions of contract which reads as follows :
"(28) The contractor shall furnish quarterly reports regarding labour employment by him/them on the work to the District Employment Officer, Vijayawada/Guntur in the proforma (Annexure-I) (Pages.....) Enclosed under intimation to the Executive Engineer, Nagarjunsagar Canals Division, Vijayawada."
It is an obligation on the part of the respondent-contractor to submit the labour reports. He came forward with an excuse that the records maintained by him were lost in 1986 floods, even accepting the reason offered by the contractor, nothing prevented him to get the necessary records from the District Employment Officer, Vijayawada/Guntur to show the labour engaged by him during the relevant period. The Arbitrator recorded a finding on the claim put forth by the contractor with regard to keeping the labour force idle, because of not providing the full site to carry out the work on mere surmises and conjunctives. The finding of the Arbitrator on this aspect reads as follows :
"Now to assess the quantum of relief. The claim is 90 workers idle for 90 days in all. The claimant could not produce records in support of these figures pleading that his records were damaged in the floods of August, 1986 in his area. The department proceeded their registers of labour particulars as recorded by them during the programme of work. These manuscript registers were examined by the contractor also at the hearing and he pointed out some discrepancies other writings non attestations complaining that the recorded figures of labour were lower than what he had employed. Notwithstanding these observations of the contractor, I have to rely upon the labour particulars of the department in the absence of better record. Except in October, 1978 and November 1978 the labour employed figures were not much. October, 1978 average was 203 per days. November, 1978 average was 216 per day. The contractor explained that he was expecting the hindrance to work to case every week and so he could not disbank his labour from the discussions which ensued at the hearing, all the labour could not have been idle. About one third of the labour could have been utilized on some items of work. The balance that could be treated idle was 135 Nos. for 27 days in October 1978 and 144 Nos. for 26 days in November 78. Assessing an average wage of Rs. 6 per worker per day the loss of these idle periods works out to Rs. 44,336. This was awarded against Claim 1.
Claim II for Rs. 1,11,400 plus 11,140 is similar to claim I but pertaining to the duration of second season. His claim for idle wages for 125 Nos. 60 days at Rs. 8 each other items included are his loan of advances when the labour filed for want of work, expenses of rebuilding camp and compensation. On the similar reasoning as adduced under claim I have also the idle labour wages part only deserves to be consideration the rest are not the liability of the department seen from department maintained labour accounts and assessing at two thirds only as idle component (as in the case of claim No. 1) the net infructuous labour comes to 93 Nos. for 27 days in October, 1979 and 70 Nos. for 26 days in November 1979, Adopting average wage of Rs. 6 per man day, the Award amount is Rs. 25,986 against Claim II."
The whole approach of the Arbitrator in awarding the compensation under the above items is based on mere conjunctives and surmises. When there is no proof with regard to the number of labour engaged by him, there is no basis for the Arbitrator to come to the conclusion that a part of the labour engaged by him was kept idle because of the appellants-department not providing the full site to execute the work. There is no rationale in the method adopted by the Arbitrator in taking 2/3rd of the labour engaged by the contractor in the month of October 1978 and November 1978 and September, October and November 1979 kept idle. The lower Court also did not examine this aspect in right perspective and thereby erred in confirming the amount awarded by the Arbitrator under the above items. Therefore, the Award in so far as granting Rs. 70,320 towards loss of labour costs is hereby set aside.
16. With regard to the amount awarded under other items such as refund of deposits, withholding part of the interim bills etc. the respondent-contractor is entitled for return of the same in view of the fact of the appellants-department not providing the full uninterrupted site to the contractor. The Arbitrator who is a technically qualified person after appreciating the facts and circumstances of the case had arrived at certain sums under the above referred items and the Court below had recorded a finding that there are no grounds to interfere with the quantum of amount allowed by the Arbitrator. In such circumstances, I do not think that this Court sitting in the appellate authority can interfere with such a finding. In that view of the matter, I do not find any reason to upset the finding of the Court below so far as the amounts granted by the Arbitrator under the above referred items. Therefore, I am not inclined to interfere with the amounts awarded by the Arbitrator under the above referred items and decreed by the Civil Court for those items.
17. It is contended by counsel for the appellants-department that the Arbitrator has no jurisdiction to Award interest. His contention can be repelled by referring the decision of Division Bench of our Court in Superintending Engineer, NSC Circle, Ongole v. B. Subba Reddy (supra), wherein it has been held that the Arbitrator is competent to Award interest pendente lite. There is no term in the conditions of contract excluding the jurisdiction of the Arbitrator in awarding interest pendente lite interest.
18. In the result, Civil Miscellaneous Appeal and the Civil Revision Petition are partly allowed and the Award and decree shall stand modified directing the appellants-department to pay to the respondents-contractor a sum of Rs. 47,738 with interest thereon at 15 percent per annum from 08.09.1986 till the date of decree. There shall be no order as to costs.