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On the verge of completion of the said work of the said Gurgaon office, the claimant raised the Running Account Bills to the said architect (TAG) for approval and the said architect on behalf of the Bata India Ltd. upon verification and on being satisfied, certified and approved the said Running Account Bills. Neither the said architect nor any responsible officials of the petitioner Bata India Ltd. at that time raised any dispute with regard to the quality of workmanship or the quantity of materials supplied and used in the job works. The petitioner or their architect at that time never raised any dispute of the amount quoted in the said Running Account Bills rather the said architect appreciated the same by verifying, certifying and recommending letters bearing reference no. J91: 2004-2005:05:39 dated May 31, 2004 and bearing reference no. J91: 2004-2005:06:41 dated June 15, 2004. The detail of the Running Account Bills have been stated as follows:-

It is submitted that in order to avoid such liability the petitioner sought to make out a case of collusion between the Bata India Limited, TAG and the claimant without any explanation for the basis of such recommendation to make payment for the balance outstanding amount.

The petitioner has given documentary as well as oral evidence in the arbitration proceedings and has produced relevant documents including the document alluded to above to show that the denial of payment of the balance amount was totally arbitrary and without any justification. On the contrary it is submitted that no person involved and/or connected with the execution of the work has been called as a witness. It is submitted that the Ld. Arbitrator on consideration of the recommendation of TAG for two bills as well as the recommendation of Bata for payment of all the bills partly allowed the claim of the claimant. The Ld. Senior Counsel would however remonstrate that the arbitrator having found that the work was duly executed by the claimant could not have reduced the claim by 15 per cent from the balance outstanding sum. Mr. Banerjee, however, submits that Anup Chowdhury or any other officers involved in the work were not produced as a witness although the defence of Bata is of collusion and conspiracy between the petitioners and the officers of Bata. It is argued that subsequently the petitioner had paid the entire remuneration of its architect namely, TAG. The arbitral tribunal appointed an architect to inspect the work executed by the petitioners and the evidence given by such expert, Mr. Alok Ranjan could show that the work had been duly executed by the claimant. The report would not justify or support the case of the petitioner that the item supplied were inferior quality. The Ld. Counsel has referred to clause 2, 4,8,10,11,12 of the contract to show the role required to be played by the architect in the entire contract. The architect had the power to supervise the execution of the work and approve the changes in respect of on going works. Under the contract the defect removal period is six months and within the said period no complain was received. Whatever defect was noticed by the senior officials of Bata were removed to the satisfaction of Bata. The materials on record would show that all the bills were scrutinized, rectified and approved by Bata and its architect TAG. Mr. Banerjee has referred to pages 524, 526 and 538 of the affidavit in opposition forming part of the statement of claim filed before the Ld. Arbitrator to substantiate the said argument. Specific reference was made to endorsement of the officials of Bata at page 523 to 524 which is a bill dated 31st June, 2004 for the extra work at the Gurgaon office showing approval of the extra work. The said document bears the signature of Anup Chowdhury who had signed the purchase order on behalf of the Bata India Limited. It is submitted that the work executed by the claimant has been scrutinized at every stage and joint measurement sheet would show that both the architect and the claimant had duly approved the work. Such joint measurement sheet which would show the progress of the work as well as the nature and extent of work executed by the claimant. The Log Book forming part of the proceedings was also referred in order to show that correction have been carried out by pen. Initially some defects were pointed out on 29th July 2004 and removed on August 30, 2004. The officials of Bata India Limited had endorsed on the document that it was 'OK'. The allegation of collusion sought to be advanced and propagated before the tribunal was a clear afterthought, baseless, frivolous and without any foundation. It is submitted that no step has been taken by Bata against TAG for its alleged collusion with the petitioners nor it had withheld the fees of TAG that required to be paid to TAG as their remuneration. Although it was alleged that Mr. Arup Chowdhury an employee of Bata had colluded and conspired with offends of TAG but no step was taken against the said official. None of the employees of Bata India Limited who were involved in execution of the work were examined. In so far as the quality and nature of the materials used during the execution of the work and to some extent branded items were not used, it was submitted that the clause IV of the agreement clearly states that all materials and the execution of works were to be effected "as far as practicable" which means that if the branded item mentioned in the purchase order is not readily available the materials that are of same and/or similar quality could be used otherwise the expression "as far as practicable" would not have been inserted. The parties were aware that during execution situation might arise when a particular branded item might not be available in such huge quantity and if the work was to be postponed till such materials are available the execution of the entire project would get delayed. The parties never intended that in such a situation the work would remain idle till such branded item is available. In fact, whatever items have been used in place of the branded items during the execution of the contract were being approved by the Bata officials as well as TAG. To illustrate the aforesaid point the reference was made to the documents at pages 113 and 627 to 634 of the affidavit in opposition with regard to the deviation of specification of tiles. It was further submitted that during execution TAG permitted deviation of specification of tiles and approved such deviation. Such deviation was approved by TAG in order to comply with the request made by Mr. S.J. Devis to use such materials. The endorsement of the Bata officials as well as corrections or rectification made in such bills by Bata officials as well as TAG would clearly show that the bills were scrutinized and thereafter only payment was recommended. The petitioners used Kajaria brand tiles since the huge quantity of Nitco Vitrified Tiles was unavailable from the suppliers at Delhi/Gurgaon and the quality of the tiles which were used are no less inferior than that of the Nitro Vitrified Tiles. The Ld. Counsel has referred to a letter dated 19th March, 2004 where request for approval was made for use of Kajaria tiles instead of Nitco tiles. The contract was in the nature of a trunkey contract and the cost agreed included various components including price and cost of materials used in the execution of the work along with other charges including those for fixing, fitting, labour etc. It was submitted that the dispute relating to Bus Bar Trunking are without any bases and Exhibits 7,8,9 would support the case of the petitioners. The answers in cross examination to question nos. 323 to 341, 587, 588, 920 to 931 by Mr. Sagar Roy would show that the petitioner was justified to use Bus Bar Trunking. The justification for using Kajaria Tiles has also been established during the cross examination of the said witness namely, question nos. 527, 934, 935 and 1072. Similarly the case with electrical fittings used by the petitioner would appear from Exhibit 13 and question no. 3, 943 and 944 during cross-examination.

Let me now consider the rival contentions.

The claimant and RDG Interior Decoration Exterior have been assigned to do the work covered under the works order. Bata India Ltd. is the employer and TAG Architectonics Pvt. Ltd. is the architect appointed by Bata India Ltd.

The work is required to be carried out to the entire satisfaction of the architect/employer in accordance with the specifications and any further instructions and details that might be provided by the architect/employer. If the work or such further instructions and details that might be necessary to comply with the instructions, directions or explanations would be in the opinion of the contractor extra for that comprised in or reasonably to be inferred from the contract, the contractor before proceeding with such work would be required to give notice in writing to the architect. In the event of architect/employer agreeing to the same in writing, the contractor would be entitled to an allowance in respect of such extra work as an authorised extra. If the architect/employer decided that the work is to be carried out by the contractor, the contractor would do so and the amount thereof, failing any agreement, shall be settled by arbitration as provided in the said general terms and conditions, but such deference shall in no way delay the contract.

The primary challenge to the award appears to be that the said award is unreasoned award. This court is unable to accept the submission made by Mr. Mitra that the award is unreasoned. The arbitrator has taken into consideration the materials on record and has given reasons in allowing a part of the claim of the claimant. With regard to the arbitrability of some of the disputes, the award states that the objections raised by the petitioner that some of the claims in the arbitration are not covered by the agreement for reference was not pressed. The learned Arbitrator, however, stated that if for examining the claim made by the claimant, it is found that any claim is outside the purview of the agreement for reference as contained in the bilateral settlement, such claims shall be disallowed. The learned Arbitrator held that the petitioner has failed to establish any case of fraud or collusion. The learned Arbitrator on examination of various clauses of the agreement held that the architect was not only acting as a technical advisor but was entrusted to take decision for change of specification of some works and also change of materials or equipments to be used by the claimants for executing the works covered under the agreement whenever such changes are warranted. The role of TAG cannot be doubted on a vague allegation of acting in collusion by Mr. Anup Choudhury and an officer of TAG with the claimant is a definite finding arrived at by the arbitrator. At this stage, it is significant to mention that the agreement would show that the expressions "employer and architect" have been used inter-changeably. In fact, TAG has been given the supreme authority to take all important decisions with regard to the execution of the work. On completion of the work and certification of the final bill, the entire remuneration of TAG has been paid. The endorsement of Bata Officials as well as TAG on the bills for extra works and other works would show that Bata is liable to pay the outstanding amount. The final Bill dated 31st June, 2004 was duly submitted bears the endorsement and approval of both the officers of Bata India Ltd. and TAG. On consideration of recommendation of TAG for the bills as well as the recommendation of Bata for payment of the bills, the arbitrator has partly allowed the claim of the claimant. It is significant to mention that the allegations of poor workmanship by use of inferior quality of material was raised for the first time in the criminal revision petition. Ultimately, the matter was resolved by entering into the agreement where the parties have agreed to refer to some of the disputes to arbitration. It is also significant to mention that none of the persons involved with the execution of the said work has been produced as witnesses by Bata. The report of the independent expert appointed by the tribunal at the instance of the parties would not show that the work executed by the claimant was in material deviation of the contracts specifications. However, there are certain deviations noticed which are insignificant in terms of quality. The scope of reference to assess the works executed by the claimant. The expert appears to have extensively cross- examined by the petitioner. The expert maintained althroughout that it cannot be said that the work executed by the claimant is unsatisfactory. The floor managers against whom no allegation of collusion was made and had admittedly been directed to scrutinize the defects in the execution of works in different floors have not been examined by Bata for inexplicable reasons. That from time to time payments were released to the claimant by Bata coupled with fact that even the Bata Officials have accepted the final bill and had agreed to pay for the extra work would go to show that the stand taken by the petitioner subsequently about the inferior workmanship or supply of substandard or inferior material is a clear afterthought. That both the offices are functional and Bata did not feel it necessary to replace the alleged so-called substandard and/or inferior materials by any other superior material is an admitted position. It is unacceptable that the bills were passed and were approved by Bata without ascertaining the quality and quantity of the work. A large number of documents having legally binding implication on Bata are on record. It is also significant to mention that notwithstanding such allegation of collusion and conspiracy, TAG has been fully paid and no proceeding has been initiated against Mr. Anup Chowdhury or TAG for recovery of any amount. In a normal situation like this, Bata would have withheld payment of the remuneration of TAG and also would have initiated proceeding against Mr. Anup Chowdhury for recovery of loss or damage suffered by any act of collusion or conspiracy as alleged before the arbitrator. It appears to be too late in the day to raise such issues in order to avoid its liability. The architect of Bata, namely, TAG has admittedly approved the bills submitted by the claimant. The learned Arbitrator held that the petitioner was unable to lead any evidence to show that the works executed by the claimant is of inferior quality or the approval of TAG was tainted by any act of collusion between the claimant and TAG and officials of Bata. The tripartite agreement gives flexibility and discretionary power to the architect to execute the works in question. The paragraphs cited by Mr. Mitra from Hadson's Building and Engineering Contract and Halsbury's Laws of England suggest that architect has a very important role to play and his role is to be assessed on the basis of the terms of the contract. No discussion on the role of the architect would be useful unless one reads the contract to find out the extent of power conferred upon the architect. Under the contract, as indicated above, the expression "employer" and the "architect" has been used inter-changeably and the architect has been given an eminent and discretionary power to vary the contractual specifications. Clauses 2,8,10 and 11 of the contract gives wide discretionary power to the architect to issue written instructions, details, explanations with regard to variations or modifications of the claimed policies and specifications of any work. The oral direction to carry out the work is also implicit. In any event, the petitioner has certified extra work and accept its liability to make payment for the extra work. The petitioner could not have approved such bills for extra work without ascertaining the scope, nature and extent of the work carried by the claimant. The reasons recorded by the Tribunal in rejecting the plea of collusion and conspiracy cannot be said to be a view which was not possible view under the facts and circumstances of the case. The entire chain of events from the due execution of the contract till the execution of the settlement agreement would show that the plea taken by Bata to deny its liability is a clear afterthought and unsustainable. It is only in the criminal proceeding that for the first time Bata raise collusion of the claimant with some officials of Bata and also with TAG in support of its application for quashing of complaints. The long association of the claimant with Bata and TAG considered to be a relevant factor in accepting the case of the claimant that on a verbal consideration, extra works were executed. In fact, works have been started prior to the issuance of the formal work orders. The learned Arbitrator has taken into consideration clause 4 of the agreement which provides flexibility, not only in execution of the work but also in the materials of works in the execution. The expression "as far as practicable" deserved proper appreciation and the Tribunal held that the use of certain materials in substitution of the contract specifications falls within the scope of the expression "as far as practicable". This interpretation of the contract cannot be questioned in this proceeding. That the defects have been removed by the claimant on instructions being received by Bata is also not in dispute. There is no other defects that is required to be removed by the claimant apart from that was indicted by Bata. The learned Arbitrator, however, reduced the claim by 15% on the ground that the claim made by the claimant is over-emphasized.