Jharkhand High Court
Central Coal Fields Ltd. vs S.K.Dutta on 19 May, 2010
Author: Pradeep Kumar
Bench: Pradeep Kumar
Miscellaneous Appeal (S.J.) No.258 of 1997 (R)
(Against the judgment and decree dated 22.07.1997 (decree signed on
30.07.1997) passed by Sri Raghubir Sharan Pandey, Sub- Judge-I, Ranchi in Miscellaneous Case No. 35 of 1995.)
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Central Coalfields Limited, Darbhanga House, Ranchi ------ Petitioner/Appellant
-Versus-
M/S. S.K. Dutta & Company
(Contractor), Ranchi -------
Respondent
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For the Appellant : M/S. Ritu Kumar, Nilu Sinha, Advocate
For the Respondent :
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PRESENT
THE HON'BLE MR JUSTICE PRADEEP KUMAR
----
C.A.V. on 27.04.2010 Pronounced on 19-5-2010
Pradeep Kumar, J. Heard learned counsel for the appellant and learned counsel
for the respondent/opposite party.
2. This appeal is directed against the judgment and decree dated 22.07.1997 (decree signed on 30.07.1997) passed by Sri Raghubir Sharan Pandey, Sub- Judge-I, Ranchi in Miscellaneous Case No. 35 of 1995, by which judgment learned Sub Judge after rejecting the objections made by the appellant, Central Coalfields Limited made the award rule of the court.
3. It is submitted by learned counsel for the appellant that the learned Sub Judge failed to consider the fact that the claims raised by the contractor-respondent, M/S. S.K. Dutta & Company were time barred and the learned Sub Judge should have dismissed the award in spite of making rule of the court. He has further submitted that the appellant had made an objection that the counter claim made by the appellant were not considered, and as such, the award was bad in law and fit to be set aside. It is further submitted that non-consideration of counter claim is an error apparent on record and should not be made rule of the court.
4. Learned counsel for the appellant has relied in a decision reported in 1991 (1) SCC page 533 in the case of Indian Oil Corporation Limited Vs. Amritsar Gas Service and Others.
5. On the other hand, learned counsel for the respondent has submitted that the awards were within time. The learned Sub Judge has considered the same in Para 5 of his judgment. Moreover, the reference was made in a suit with agreement of both the parties, and as such, now at this stage the appellant cannot say that any of the claim was time barred. He has further submitted that the counter claim of the appellant has been considered by the arbitrator and after considering the counter claim and the fact that the Central Coalfields Limited had imposed 2% charge on the total contract, was not accepted by the arbitrator and the same was rejected, and hence, the appellant cannot say that their counter claim was not considered and the learned Sub Judge has rightly made the award rule of the court. He has submitted that it is now settled by the judgments of the Hon'ble Supreme Court recently reported in 2010 (1) JLJR page (SC) 145 in the case of M/S. Ravindra Kumar Gupta and Company Vs. Union of India, wherein it has been stated that arbitrator is final arbiter for dispute between parties, and as such, the finding of facts already discussed, cannot be looked into, hence the prayer of the appellant is only fit to be rejected.
6. After hearing learned counsel for the parties and after going through the records, I find that the facts of the case are as under:
The appellant company, Central Coalfields Limited called for a tender for construction of 100 minor of Quarters at Central Sounda Colliery of Central Coalfields Limited and the tender of the respondent, M/S. S.K. Dutta and Company accepted and they entered into the agreement for construction of 100 Quarters on 14.02.1978. The respondent company started the construction of 100 Quarters on 01.02.1978 as per the agreement. It was envisaged as per the agreement that the work was to be completed on 31.01.1979, but the work was completed on 29.12.1979 i.e. after a delay of eleven months. The contractor made claim on the ground that the site was delayed by the company and during construction, the employees of Central Coalfields Limited forcefully occupied the quarters, which caused, the delay in completion, and hence, they are entitled to get extra payment for the loss sustained by them. And the appellant also made counter claim, subsequently, the respondent M/S. S.K. Dutta and Company filed Arbitration Title Suit no. 34 of 1995 with regard to the dispute of contract invoking the arbitration clause, and subsequently, as per the order of the Sub Judge, Shri Uday Shankar, Ex-Chief General Manager (Civil), CCL, Ranchi was appointed as the sole arbitrator after hearing both the parties. Subsequently, the said sole arbitrator submitted his award dated 31.01.1995. The appellant, Central Coalfields Limited then filed petition under Section 30 read with Section 33 of the Arbitration Act, 1940 against the award submitted by the arbitrator and prayed for setting aside the award on the ground stated therein.
7. It appears that after hearing both the parties and after going through the records, the learned Sub-Judge found the objections raised by the CCL not maintainable and made the Award rule of the court.
8. Here also, the main objection, which has been raised by the appellant, is that the claims made in the award was time barred.
9. After considering the aforesaid arguments and going through the impugned judgment, I find that learned trial court in Para 5 has found that all the disputed matters were referred to the arbitrator with the consent of the parties and the appellant having made no objections of the fact that the claims are time barred before the Sub-Judge in title suit at the time the disputes were being referred to the arbitrator and once the disputes are referred to the arbitrator, the same cannot be looked by the arbitrator and he cannot give a finding that any claim is time barred. In this regard the learned counsel for the respondent has rightly relied in a decision reported in AIR 1957 Bombay page 178 in the case of Savitra Khandu Beradi Vs. Nagar Agricultural Sale and Purchase Co-operative Society Ltd. Ahmednagar and others, in which it has been held as under in Para 6 of the Judgment:
"The Indian Limitation Act primarily applies to suits, appeals and applications and it has no direct application to arbitration proceedings. Section 3 of the Limitation Act provides that 'subject to the provisions contained in Ss. 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.' Evidently a proceedings before an arbitrator is not a suit, appeal or application, and in terms S.3 can have no application. It is well settled that expiry of the period of limitation prescribed for a suit does not destroy the right: it only bars the remedy for enforcement of a right in a Court of law. It cannot, therefore, be said that in terms the provisions of the Limitation Act prevent an arbitrator from entertaining a claim which, if made in a Court of law, may be barred by limitation."
The second point which has been raised by the appellant is that his counter claim was not considered by the arbitrator, but it will appear that the arbitrator has fully considered the same. It appears from Para 8 of the award in page 4, wherein the arbitrator has stated as under:
"CCL refuted these claims and imposed 2% of total value of contract as penalty, where by the final bill became negative. As such, recovery of due money was decided to be effected from security deposit."
10. The appellant also stated that the award is under speaking and only the lumpsum award is given, but it will appear from the award that the arbitrator while passing the award has considered the case of both the parties, their case and counter case and given reasons in paragraphs 19.3, 19.4, 19.5, 19.6, 19.7 and 19.8. In paragraph 19.7, the arbitrator has given the following reasons "The responsibility for failure of he contract i.e. delay in completion, must rest with both the parties. And it must be admitted that situation went beyond the exclusive control of the claimants."
11. Accordingly, for the reasons aforesaid, the given claim of the CCL was raised after giving full consideration of the case. It has rightly been held in the recent case as relied by the learned counsel for the respondent i.e. 2010 (1) JLJR page (SC) 145 in the case of M/S. Ravindra Kumar Gupta and Company Vs. Union of India. It has been held that the arbitrator is final arbiter of the dispute between the parties and it is not open to challenge on the ground that arbitrator has drawn his own conclusion or has failed to appreciate facts, relying on the earlier decision of Supreme Court reported in 1994 (6) SCC 485 in the case of State of Rajasthan Vs. Puri Construction Limited and Anothers.
12. Accordingly, I find that there is no illegality in the impugned judgment dated 22.07.1997 passed by Sri Raghubir Sharan Pandey, Sub- Judge-I, Ranchi in Miscellaneous Case No. 35 of 1995.
13. I find no merit in this appeal and the same is accordingly dismissed.
[Pradeep Kumar, J]
Jharkhand High Court, Ranchi
The 19/5/2010
R.K/