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7. The learned Arbitrator proceed to consider the issue whether Exhibit R-2 was a voluntary and genuine admission on the part of the petitioner-claimant regarding its fault in delaying the project, or whether it was obtained from him under coercion or duress by the Engineers of the respondent who wanted to save themselves in the wake of Parliament Question. While dealing with this issue, the learned Arbitrator examines the correspondence exchanged between the parties as also the various steps taken by them for the performance of the contract. On this basis, he concludes that the delay was on the part of the respondent. He also takes note of the fact that for about three years the respondent allowed the claimant to go ahead with the work which, according to him, showed that the petitioner was not to blame for delay in execution of the work. He notes that as per record till May 1984, when inspection was carried out the completed work was about 62% only. Still no action taken against the petitioner. He observes that this indicates that the respondent was satisfied that the petitioner was not to blame for the delay. He also notices the fact that the petitioner was paid escalation under Clause 10(C) upto the 34th RA Bill dated 23.11.1985, which indicated that till then the respondent did not blame the claimant for delay in execution of the work. He holds that the letters issued by the respondent, and relied upon by them, to claim that the progress of the work was slow were of no consequence. He holds that the said letters were apparently written in routine, only to save their own skin in regard to delay in completion of the project.

Sub: C/o 96, Type-III, 96, Type-II house and 144 S/Grs. In Block B Janakpuri.
Dear Sir, Kindly refer your letter No.F(31)A/HDXXX/DDA/84/85/ 1276 dated 24/7/1985 regarding slow progress on the above cited work. It is admitted that on account of some financial problem with the firm, we could not deploy sufficient labour required to complete the work as per programme given by you. We now reaffirm that the entire work as per terms and conditions of the agreement like flooring, plastering, white washing, sanitary installations, water supply installations, miscellaneous items and item of internal development shall all be completed by 30th Sep.

"We have sufficient labour and material with us and as such there is no hindrance in our work on account of this but the progress of our work is being hindered only for non-payment of our long outstanding dues. Kindly release the same immediately so that we may be able to show our worth in completing the job by the target already committed." (emphasis supplied)

42. It is pertinent to note that after issuance of this letter dated 10.2.1984 (C-45), there was no communication from the side of the petitioner, and on 16.11.1984, the respondent issued a show cause notice under Clauses 2 and 3 of the Agreement (C-46) thereby complaining that there was slow progress of the work without any reason. On 7.12.1984 (C-47), the petitioner sent its reply. In this reply the petitioner referred to the earlier defaults and failures of the respondent, but did not refer to any ongoing failure or default of the respondent. In the concluding paragraphs of this communication the petitioner stated as follows :

49. The finding of the learned Arbitrator that "It is not understandable as to why all of a sudden on 1st August 1985, the claimant should have taken a U-turn and written Ex.R2, which was absolutely self-damaging, contrary to its stand and exonerated the respondent of all its defaults", appears to be result of non-application of mind to the aforesaid facts and documents/evidence on record.

50. Pertinently, the learned arbitrator has even failed to notice that Ex. R-2 had been issued in response to the respondent‟s show cause notice bearing No.F(31)A/HDEXXX/DDA/84-85/1276 dated 24.07.1985 regarding slow progress of the work at the site. The said show cause notice dated 24.07.1985 was also placed on record by the respondent as Ex. R-45. Therefore, it could not be said that the letter dated 01.08.1985 (Ex. R-2) came as bolt from the blue, as held by the learned arbitrator. The facts discussed above show that the communication dated 01.08.1985 was not issued, as suddenly, as held by the learned Arbitrator. It was also not a U-turn inasmuch, as, the respondent had issued notices dated 16.11.1984 (C-46), 07.12.1984 (C-47) and 24.07.1985 (R-45) accusing the petitioner of delays and defaults in the completion of the works. The petitioner had, as early as on 07.12.1984 and responded by assuring the completion of the works "in the very near future". It is clear that the learned Arbitrator has ignored, inter alia, the petitioner‟s reply (C-47) dated 07.12.1984, and the respondents notice dated 24.07.1985 (R-45) while rendering his impugned award. Failure to consider such relevant documents amounts to misconduct on the part of the learned Arbitrator. There is nothing placed on record to show that "throughout the period of subsistence of contractual relationship between the parties, the claimant had not continuously written to the respondent that it was not responsible for the delay in the project". As aforesaid, firstly, the contract was not rescinded on 11.10.1985. Secondly, after the issuance of the letter dated 10.02.1984 (C-45), the petitioner, of its own, did not even once make a grievance of the existence of any further hindrances, delays or defaults on the part of the respondent. The observations of the learned Arbitrator that "the mere fact that the respondent has been writing certain letters to the claimant that the progress of the work was slow is of no consequence. It appears that the respondent was writing these letters in routine only with a view to save its own skin in regard to the delay in the completion of the project", shows non-application of mind by the learned Arbitrator to very relevant documents and facts. The dates and contents of these letters have not at all been examined and considered by the learned Arbitrator.