Karnataka High Court
The State Of Karnataka vs H.V.Krishna on 3 April, 2012
Author: N.K.Patil
Bench: N.K.Patil
4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 'C -l- IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3° DAY OF APRIL 2012. PRESENT THE HON'BLE MR. JUSTICE WK. PATIL. THE HON'BLE MR, JUSTICE BY. PINTO MFA Ne. 8264/26 O2 (AA ) Siw _ MFA No. 8265/20 09 [AAS alm Misa Celilo 2991 OF 201. = "MEA Ne. No 8286 2009 (AA) "aie Mics vi. No. 2982 OF 2010 & MEA Nos S267) 2009 (AA) ix Mis No. S264 OF 2008 (AA I: - BETWE EN: * 'The State of Karnataka, Represented by Ths Executive Engineer, Zilla Panchayath : -Engineering Division, Chennarayapatna, Hassan District. . Appellant (By Sri. Sangamesh G. Patil AGA) " BRIWEEN: GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAIAKA HIGH CUOUKI UF RARNAIARA Tran wow AND: 1. H.V. Krishna, P.W.D. Clase Contractor, Balegara Beedi, Fort, Holenarasipura, = Hassan District. 2. H.R. Channaveeraiah, . ~-- Retired Chief Engineer, --. No.S1, 'Chetana', can Il Main, Ganganagar, : SAN Bangalore - 560 032. oo. Respondents.
(R-1 served, R-2 Notice dinpensed with vio dated.3.4.201 2) .
a Stefi 'This MFA is "filed "under Section 37(1) of Arbitraticn Act, against the judgement and decree dated 06.01.2009 pasaed in Arvitration case No.3/2003 on the file of Principal District Judge, Hassan, dismiseing the Arbitration suit filed under Section 34 of Arbitration and Conciliation Act R/w Rule 4 of High .. Court of Karnataka Arbitration Rules to set aside the award dated 31.01.2003.
-Afw Misc.Cvi.No.2991 OF 2010 e wo . The State of Karnataka, Represented by The Executive Engineer, Zilla Panchayath Engineering Division Hassan, Now called as Panchayath Raj, 4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C -3- Engineering Division, Hassan. .. Appellant common In Appeal & Miisc.Cvis.
(By Sri. Sangamesh G. Patil AGA} AND : --
1. H.V. Krishna P.W.D. Clase 1 Contractor, Balegara Beedi, Fort, Holenarasipura,
2. Y.S. Yediyur, No. 392, 4 Croas,.
Siddartha lay-out, ne BO _ Appeal & Misc.Cvls.
(By Sri Girish B. Baladare f for R- 1, Adv., c RQ Notice © dispensed with v/o. 3.4. 2012} . dete tok tite te This MFA. is filed under Section 37({1) (b) of Arbitration Act, against the judgement and decree dated _ . 06.01.2009 passed in Arbitration case No.4/2008 on \ 'the file. of Principal District Judge, Hassan, dismissing the auit filed under Section 34 of Arbitration and Conciliation Act R/w Rule 4 of High Court of Karnataka 7 Arbitration | Proceedings Before Court} Rules of 2001. 7 Misc.CvL.No.2991/ 2010 is filed under Order 41 | Rule 5 rf/w Section 151 of CPC praying to stay the operation and execution of the award dated 23.12.2002 Me passed by 2nd respondent and judgment and decree dated 6.1.2009 in Arbitration Case No.4/ 2003. TIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C No. OF :
A/w Misc.CviNo. 2992 OF 2010:
BETWEEN:
The State of Karnataka, Represented by The Executive Engineer, Zilla Panchayath an Engineering Division Haasan, Now called as Panchayath Rai, -- mos Engineering Division, Haeean, me, ... Appellant. ; - (Common) (By Sri. Sangamesh G. Patil ACA} AND :
1. ELV. Krishna ae _ P.W.D. Clase.1. Contractor, "
Falegara Beedi, Fort, Holenarasipura; =. --
Hassan District. ,
2. ¥.8. Yediyur, | "No, 392, 4" Cross,
- Siddartha Lay-out, _ Mysore. 7 .. Respondents (Common) By Sri. B. .K Manmohan for R-1, Adv., : OR notice dispensed with vio. 3, 4, 2012) teh ih bd This MFA is filed under Section 37 of Arbitration Act, agaimset the judgement and decree dated ~~ 06.01.2009 passed in Arbitration case No.5/2003 on the file of Principal District Judge, Hassan, dismissing the suit filed under Section 34 of Arbitration and 4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C
5. Conciliation Act R/w Rule 4 of High Court of Karnataka Arbitration (Proceedings Before Court} Rules 2901 for setting aside the impugned award passed by the arbitrator dated 23.12.2002.
Rule 5 r/w Section 151 of CPC praying to atay the:
operation and execution of the awerd dated 22.12.2002 passed by 2nd respondent and judgment and decree. dated 6.1.2009 in Arbitration. Case No.5/2003... | oa IN MFA No, 8267 OF 2009 (AA);
BETWEEN:
The State of Karnataka, Represented by ~ The Executive Engineer, Zilla Panchayath | Engineering Division Hassan, Now called as Panchayath Kaj, Engineering Division, Hassan. . Appellant. (By s Sri. - Sangacnesh G. Patil AGA) P.W.D. Class 1 Contractor, _ Balegara Beedi, Fort, ~Holenarasipura, Hassan District.
2. ¥.8. Yediyur, No, 392, 4 Crogs, Siddartha Lay-out, GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU Mysore. . Responderits (By Sri. Girish B. Baladare for R-1,Adv.,, R-2 Notice diapensed with v/o. 3.4.2012} _ thkkhike This MFA is filed under Section 37(i}{b) "Of Arbitration Act, against the judgement and decree dated.
06.01.2009 passed in Arbitration case No. Sj 2063 or the file of Principal District Judge, Hassazi, aismissing the suit filed under Section 34 of Arbitretion and Conciliation Act R/w Rule 4 of High: Court of Karnataka Arbitration (Proceedings Before, Court) Rules of 2001 These: MPAs & Misc. Cvis. 'coming on for orders this day, NB PATE. a, Aelivered the following: -
Even though these matters are listed for ordera, -- they are taken up for final diz posal with the consent of a alice AGA.
° a . These fear appeals arise out of the same judgment dated 6.1.2009 passed in Arbitration Suit Nos.3, 4, 5 and 6/2003 on the file of the Principal District Judge, 4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH'C
3. The brief facts of the case are that the Arbitration suits filed by the appellant herein are cin. _rospect of adjudication of the award passed by the ar bitentor, the 7 sole adjudicator, who has 'Passed the award in the.
matter of claim of rea ponderit No. 1 in respect of bid vide | Slice No.HAS Nos.6, 19, 11 and 17 reepectively, Hassan District, for providing water supply 'corinection to six villages in 2 Arkalgud and H. N. 'Pur Taluk, which works were under the control of the 'Executive Engineer, District Project Management Unit (World Bank Project), Haseati, though the agreement of contract arrived at between the parties was in the years 1997, 1998 and
- 1999, "whereas ¢ certain disputes arose between both of
- 'them: in respect of final bill settlement for the works executed by the 1* respondent under the above project
- £8 per 'the agreement entered into between them and executed and in this regard approached the management - The Executive Engineer, Zilla i SH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUKI OF KARNAIARA MIGF CYURI YF KARINA Flor were Panchayath Engineering Division, Hassar: "After execution of the work, later it wae transierred te J the appellant's control. The 1* respondent being a claas | i | contractor has submitted his final pill to the aypellant due as on 16.09.2000 ete., aa the bilia were not settled, | he has invoked clause. 24 of the General Condition of contract and he has referred the: yoatter to the adjudicator © a8 per Clause 36° of LTB. The 2n¢ responder:t sole arbitrator, who has been appointed as sole adjudicator of clause 36 of LT.B. The arbitrator after gcing through the entire records, documents and orel | submissions placed before him for adjudicating the
- matter between the partes and 1" respondent herein
- making: allegations against the appellant for non- payment of his final bill also has claimed compensation fr delay in settling the bills and has claimed interest on : balance amount of compensation, as such he has raised four claims as regards there is a statement filed by the 1* respondent for the purpose of perusal and also reply ho 4IGH COURT OF KARNATAKA HIGH CCURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CUUKT OF KAKNATARKA Mrariu to the counter statement. Both the parties "have produced all the available documents. After ordi | a. reasonable opportunity to both the parties: . and | considering the representation and after considering the oral and documentary material on record end the terms :
and conditions of the contract, "the Qné 'yespondent herein has passed the impugned award, being aggrieved by the award passed by the arbitrator, the appellant herein has filed Arbitration Suit 'Nos.3, 4, 5 and 6 on the tile of Pincipal District "Judge at Hassan, under Section 34 of the Arbitration and Conciliation Act, 1996 r/W Rule Wv of High 'Court of Karnataka Arbitration
- (Precedings before Court) Rules of 2001, praying to set
- aside: the award passed by the arbitrator and allowing the suit with costs on different ground.
4. All the four cases had come up for consideraton 'before the learned Principal District Judge, Hassan.
The Court below, in turn after re-appreciation of the fo GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA MIGH COUKIE Ur RAKNALARA Tun www ~10.
oral and documentary evidence and other materiale on record has dismissed the suits filed by the appellant - therein. Consequently the award | wes. passed by the _ arbitrator has been confirmed with no costs. Being. aggrieved by the impugned. judgment pe eased by the court below, as referred above, the appellant felt necessitated to present. all these four F appeals.
3. We | have 2 heard the learned AGA. At the outeet he submitted that, there 1 , delay and laches on the part of the contractor. n. "smecuting the contract. The saii contract has been entrusted on the basis of the scheme
- introduced by the Central Government with a specific
- purpose for supplying the drinking water to six villages in' Arkaigud and H.N. Pur Talik, in the year 1997.
" : Though the Executive Engineer incharge has submitted . a report stating that there is a delay in carrying on the work by the 1't respondent - contractor due to violation of terms and conditions they have with-held the a 4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT UF KRAKNATARA MGI U «ll.
settlement of final bill. This aspect of the matte: has not been considered either by the arbitrator or the court below. Therefore, the impugned judgment, and award Os passed by both the arbitrator aad. court below ore > isle | to be set aside.
6. After careful consideration of the submission of the learned AGA and after perused of the grounds urged in the memorandum of appeals and after going through the reconis,, it is 'smanifest on the face of the order pasaed by tine learned Principal District Judge, Hassan, as well. as the. awerd. of the Arbitrator that both the authorities "after: going through the oral and
- documentary evidence and other matenal on record,
- have recorded a coneurrent finding of fact that withholding the settlement of final bills is not justifiable. a : The 'arbitrator has conducted the proceedings thoroughly being a well qualified sole arbitrator and following due procedures and terms and conditions of the contract. He has pointed out that there is delay and fo GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA' MIGH COU
12. laches on the part of the appellant m withholding the payment of final bills, So far as the 1* respondent's coriterition is concerned, if at all any deloy has ben caused, it was due to the "concerned Engineer's :
monitoring and non-co-operation of other persons at the. | time of implementation of the acheme, "The aame © has been certified and 4 report submined the effect that the work carried out is satisfactory in nature. It is not the case of the. appellent that thie incharge Executive Engineer of the project 'thas pointed out due to delay in executing thie work, he is liable to pay penalty. If there was delay, stape ought to have been taken before submitting the final report. After receipt of the final bill
- submitted 'by the 1 respondent - contractor raizing
- objection which making payment is not justifiable, if at all they take any decision, it ehould be before declining "tg settle the final bills. This aspect of the matter has . ~ been rightly decided by the arbitrator as well as by the eourt below.
4IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C -13-
7. Therefore, in view of concurrent finding of fact recorded by both the arbitrator as well tt i material on record, we are of the view "that interference by this court is not called for in view 7 of the well settled. .
law laid down by the Apex Court and this court Further, the appellant has failed vo meke out a ground for granting the relief under Sec. 34 of the Arbitration and Conciliation Act, 1996, sw Rule IV of the High Court of 'Karnataka, 'Arbitration (Proceedings before Court} Rules of 2001.
g. Therefore, we are of the considered view, that
- ; interference by this court is not warranted in view of the 'well considered and well reasoned award of the arbitrator and the court below. Accordingly, these appeals stand dismissed as being devoid of merit. fa GH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KAKNAIAKA MIGHT UGUI ~ 14.
9. Mise.CvLNos.2991/2009 and =---2992/2010 respectively in MFA Nos.8265 and 8266/ 2008 are filed | s seeking stay of the impugned judgment and award. Since the main matters are. disposed of, the relief f sought 7 for in these applications does "not 'survive for | consideration. Hence the said applications are e disposed of, as having become infructuous." - oe Sd/-
JUDGE Sd/-
JUDGE noe