Punjab-Haryana High Court
Pardeep Kumar vs Haryana State on 25 January, 2006
Equivalent citations: (2006)143PLR106
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The challenge in the present revision petition is to the order passed by the learned First Appellate Court on 5.1.1996, whereby the award awarding an amount of Rs. 5,02,150/- by the Arbitrator under Item No. 4 i.e. claim for cleaning of silt and bailing out water from the wells before the plugging of concrete wells, was set aside.
2. The petitioner was granted a contract for constructing Aqueduct Crossing Outfall Drain No. 8, Gurgaon Water Supply. One of the conditions of the works order was that payment against any item not covered by the above items, shall be made as per the approval of the competent authority.
3. The petitioner has raised a claim of Rs. 7,28,640/- against item No. 4 i.e. claim for cleaning of silt and bailing out of water from the wells before the plugging of concrete in wells. The learned Arbitrator gave the award of Rs. 5,02,150/- by recording the following reasons:-
Item No. 4: Claim for cleaning of silt and bailing out water from the wells before plugging of concrete in wells.
Amount claimed Rs. 7,28,640/-
A reference to Haryana P.W.D. Schedule of Rates indicates that under para No. 22.12 cleaning of silt from wells is a separate item apart from wet sinking of wells and is payable per cubic metre of the volume cleared in side the well.
A perusal was made of the tender documents of some works of a similar nature as below and it is seen that this item is provided as a separate item other than well-sinking.
(i) V.R. Bridge at RD 26500 of Buriya Nailah (Construction No. 33, Faridabad).
Estimate sanctioned vide Chief Engineer/Construction, Irrigation Deptt. Haryana No. l440/Const. Dated 23.2.1995. Item of cleaning of silt in wells provided at Sr. No. 26.
(ii) Construction of Aqueduct at RD 10840 metre of supplementary drain across Delhi Tail Distributary the item of cleaning of silt from wells including bailing out water" is provided at Sr. No. 43 offender documents.
The petitioner has also submitted copy of an agreement for this item of work with a sub contractor Shri Safed Khan for an aggregate amount of Rs. 4,15,000/-.
It is, therefore, clear that this item has been omitted in the N.I.T. /Estimate /Work order and actual work done is payable to the petitioner. In the absence of any specific estimated/contracted quantity, the amount claimed by the petitioner can not be awarded in full.
Amount awarded in favour of the petitioner = Amount of sub contracted with reasonable profit and overhead expenses = Rs. 5,02,150/-.
4. The respondent has filed objections against the said award, inter alia, alleging that the amount of Rs. 5,02.150/- could not be awarded as the contract agreement specifically included bailing out of water in the main work i.e. excavation of well. Though the learned trial Court made the award as Rule of the Court but the learned Appellate Authority found that the amount awarded against Item No. 4 could not be made Rule of the Court as the Arbitrator has acted beyond the terms of the agreement.
5. Learned Counsel for the petitioner has vehemently argued that since the objections filed by the State against the Award were beyond the limitation prescribed under the Act, therefore, the amount awarded under Item No. 4 could not have been set aside by the learned first Appellate Court. In support of his contentions, learned Counsel for the petitioner has relied upon Madan Lal (dead) by his legal representative v. Sunder Lal and Anr. and Food Corporation of India and Ors. v. E. Kuttappan .
6. However, I am of the opinion that the finding recorded by the learned trial Court that the objections filed by the respondent were beyond the limitation prescribed, is not sustainable in law.
7. The petitioner herein filed a petition under Section 17 of the Indian Arbitration Act, 1940. During the pendency of the said petition, the award announced by the Arbitrator was received. On 10.6.1995, the trial Court passed an order that notice be issued to the respondent for filing objections within 30 days. But the summons issued on the said date do not contain any endorsement to the effect that the award announced by the Arbitrator has been received in the Court. Therefore, the inference drawn by the learned Trial Court that the objections filed by the respondents are beyond the time prescribed as the Executive Engineer has put in appearance for the respondents on 25.7.1995, is not sustainable. The limitation for filing of objections would commence from the date of notice of the filing of the award. Since no notice of filing of the award was served upon the respondent, therefore, I am unable to uphold the finding recorded by the learned trial Court that the objections filed on 14.9.1995 is beyond the period of limitation.
8. In Madan Lal's case (supra), the Hon'ble Supreme Court has held that when no application has been made within the time allowed, only then the Court is to pronounce the judgment according to Award. Kitltapan's case (supra), dealt with the authority of the lawyer of one of the parties to file Award in the Court. That is not the question arising for consideration in the present case. Therefore, I am of the opinion that the objections filed by the respondents on 14.9.1995 were within the period of limitation prescribed by law.
9. A perusal of the reasons given by the Arbitrator while announcing the award in favour of the petitioner shows that the Arbitrator has referred to Haryana PWD Schedule of Rates and to the contracts other than the contract between the parties. The contract agreement between the parties specifically included bailing out of the water in the main work therefore, the petitioner could not have been awarded the amount for cleaning of silt and bailing out of water as an extra item. Therefore, the learned first Appellate Court was perfectly justified in law in holding that amount of Rs. 5,02,150/- has been awarded beyond the terms of the Contract, which is not permissible in law.
10. It may be noticed that in Union of India and Ors. v. Manager Jain and Associates , it has been held that the Court can suo-motu refuse to make award Rule of the Court on the ground that the part of the Award is upon a matter not referred to the Arbitrator and that the award on the face of it is illegal. It was held to the following effect:-
11(a) After receipt of an award, the court can suo motu refuse to make award rule of the court on the ground that (i) part of the award is upon a matter not referred to arbitration; and (ii) the award is imperfect in form or contains any obvious error. The court can also remit the award to arbitrator in case (i) where the award has left undetermined any matter referred to arbitration; (ii) where it has determined any matter not referred to arbitration; or (iii) the award is so indefinite as to be incapable of execution; or (iv) is on the face of it illegal. This is also provided under parenthesis clause of Section 17 which provides "where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the court shall...proceed to pronounce judgment....". Therefore, it cannot be stated that in case where objections under Section 30 of 33 are not filed the court is bound to pass decree in terms of the award.
11. In view of the above, it is apparent that even if it is to be taken that the objections are not filed in the Court, the Court is not bound to pass decree in terms of the award. Since, the amount against item No. 4 could not be awarded in view of its being an extra-item, therefore, the said part of the award has rightly been set aside by the first Appellate Court.
12. In view of the above, I do not find any illegality or irregularity in the impugned order, which may warrant interference by this Court in exercise of its revisional jurisdiction.
13. Hence, the present revision petition is dismissed.