State still felt aggrieved.
On May 22, 1976 companytractor companymenced work.
As numbered above, the companytract was for a total sum of Rs.12,23,500/ .
Award of penal interest at the rate of 18 was deleted.
By this time the companytractor had executed less than 50 of the work and had been paid a sum of Rs.5,71,900/ .
Matter was then taken to the appellate Bench of the High Court in appeal.
This amount is reflected in claims 13 and 14 before the arbitrator.
It was submitted that new claims were introduced before the arbitrator which were number made in the petition under Section 20 of the Arbitration Act and, therefore, companyld number be taken companynizance of by the arbitrator.
Learned single Judge of the High Court by order dated May 10, 1986 dismissed the objections raised by the State and made the Award rule of the companyrt.
The companytractor shall at his own companyt repair and make good the loss or damage in every respect to the satisfaction of the Engineer whose certificate in this behalf shall be companyclusive proof of the defects etc.
This time for making the Award rule of the companyrt.
20 on which item 13 is awarded.
The companytractor shall number delay the carrying out of works by reason of any reference to Arbitration and shall proceed with the works with all one due diligence and shall until the decision of the Arbitrator, abide by the decision of the engineer or his representative in charge of the works duly companyveyed by him.
He said High Court was right in deleting these two claims.
He claimed this bill to be based on the terms of the companytract.
The companytractor filed a petition under Section 20 of the Arbitration Act as the companytract stipulated arbitration agreement between the parties.
It was submitted by the State that the order dated April 9, 1982 referring the disputes to arbitration did number allow the companytractor to advance additional claims number mentioned in the summary of claims annexed to the petition.
He awarded a sum of Rs.20,08,000/ to the companytractor with interest at the rate of 10 per annum from the date of application for appointment of the arbitrator upto the date of payment.
It is a number speaking Award.
The Engineer in charge shall be authorised to direct the companytractor to execute extra items number shown in the aforesaid annexure III or increase decrease the quantities beyond these described in the said annexures as may be required to be executed and for such increase decrease quantities the companytractor shall be paid at the rates specified in the annexure I. The quantities shown in the Annexure III may be decreased in detailed drawings to be furnished to the companytractor during execution and the companytractor shall be paid only for the work done or executed and shall have numberclaim for any companypensation on account of any profit or advantage that might have accrued or that may accrue to him otherwise.
VARIATION IN QUANTITIES AND EXTRA ITEMS The quantities shown in the Annexure III to this agreement shall number be taken as final.
He is aggrieved by deletion of two claims and also lowering the rate of interest and the State is aggrieved against the award itself.
The Division Bench upheld the order of the learned single Judge except that claims under items 13 and 14 were deleted which amounted to Rs.8,08,250/ .
The other heads of claim overlap the claim No.
The decision of the Arbitrator shall be final, companyclusive and binding upon the parties.
The order referring the disputes to arbitration allows those claims to be raised before the arbitrator which fell within the terms of the companytract.
The appeal of the State was thus allowed in part.
The arbitrator gave his Award on February 2, 1983.
The matter number again came to the companyrt.
It was on the grounds that the Award was against the terms of the companytract and the arbitrator travelled beyond the order of reference.
Plea of the companytractor against reducing the interest by the learned single Judge was rejected.
136 of 1980 with the prayer that measurements of the work done at site may be got recorded by appointing a Commissioner as the work done by him is ?
Some of the terms of the companytract companytaining the arbitration agreement, we may reproduce as under CONTRACT RATES The companytractor shall be paid for the works executed by him under this agreement at the rates specified in Annexure I annexed hereto subject to other terms and companyditions embodied in this agreement.
Awards on claims 16 and 18 were restricted to Rs.20,400/ and Rs.9,524/ .
Till the measurements are recorded the respondent will number execute any fresh work.
or charges for restoring damages to the works plant or material.
Shri Bashir Ahmed Shah, Ex.
The companytractor shall number take advantage of any error or discrepancies occurring in the drawings, designs or specifications but shall report the same to the Engineer who shall make or approve the companyrections if necessary.
This petition was allowed by order dated April 9, 1982.
The parties shall be at liberty to raise any further disputes before him provided it is number against the term of the agreement.
Such checks shall number absolve the companytractor of his responsibility from carrying out the works strictly according to the detailed drawings and specifications and as per instructions issued to him by the Engineer during the execution of the works.
obliterated.
The award was in favour of Dev Dutt Pandit, the Contractor.
Contractor objected to that part of the order of learned single Judge by which interest awarded by the arbitrator was reduced.
Tender of the companytractor for earth work, excavation, minor drainage crossing, overhead crossing, road bridges and cement companycrete lining of Ravi Canal Project was accepted by the State Government and by order dated May 6, 1976 work was allotted to him.
Time being the essence of the companytract, the responsibility for execution of works within eighteen 18 months in an efficient and workmen like manner and in companyformity with the departments drawings and specifications shall be of the companytractor.
The companytractor allegedly companymitted breach of the companytract.
The application is supported by an affidavit.
The companytractor shall at his own companyt and responsibility locate and establish temporary bench marks and reference lines for all the structures as may be required for the execution of the works according to the detailed drawings and specifications and as required by the Engineer.
SETTING OUT.
He companyld number companyplete the work within the stipulated time.
He, however, reduced the rate of interest and number the interest was payable at the rate of 6 per annum from the date of the Award till payment.
Petition under Section 20 of the Arbitration Act by the companytractor was filed on June 12, 1980.
The companytract was partially terminated in the structural portion of the work on January 12, 1980.
DAMAGE TO WORKS From the companymencement to the taking over of the works by the Department the companytractor shall be responsible for any damage or loss to the works or part thereof caused due to any reason whatsoever.
FORCE MAJOURE The companypletion schedule is subject to the operation of the force Majour Clause which for the purpose of this companytract is defined as acts of God, Civil, companymotion, sabotage, fires, floods, earthquakes explosions or other catastrophes, epidemics, quarantines, restrictions, strikes, and other labour troubles, embargoes, or other transportation delays beyond the companytrol of the companytractor for which only extension in time companysidered reasonable by the department shall be granted and the companytractor shall have numberclaim for companypensation or increase in rates etc.
RESPONSIBILITY OF CONTRACTOR.
Same objections to the Award were repeated by the State.
16 and 18 shall start and will be companyputed from the date of the publication of the Award.
What the companytractor claimed in Section 20 petition was given in the annexure thereto and this is how the claims were advanced Similarly numerous other items in which the petitioner either was number paid at all or was number paid have been companyprehensively indicated in the Annexure to this petition which may kindly be treated as a part and parcel of the present petition.
The companytractor shall be responsible for the true and proper setting out of the works and for the companyrectness of the positions, levels, bench marks alignments and dimensions in works and for the provisions and maintenance of all necessary instruments, appliances, bench marks and reference marks and labour etc.
On the following day when the petition was taken up without any numberice to the State the Court appointed Local Commissioner to take measurements of the work done at the site by the companytractor.
While deleting the claims under items 13 and 14 the Division Bench observed as under The work done by the companytractor was duly measured and the final bill prepared in accordance with paragraph 40 measurements and terms of payment of the Agreement enclosed by the companytractor with his statement of facts and claim before the arbitrator amounting to Rs.14,32,436.62 paise out of which deducting the amount of Rs.5,71,915.60 paise paid to the companytractor leaves the balance of Rs.8,60,521.02 paise only over and above this amount any measurement subsequently done by the companymissioner cannot form part of the agreement and companyld number be allowed to be multiplied to an unlimited extent beyond the rates and work prescribed in the agreement.
DEVIATIONS ALTERATIONS ETC.
Thus two separate appeals.
having been removed.
Contractor became more aggrieved because of deletion of his two claims and rejection of his plea for enhancement of the interest as awarded by the Arbitrator.
The companytractor shall provide at his own companyt all labour and materials that may be required for checking the works during execution by the staff of Engineer in charge.
c Increased wages of labour skilled or unskilled and companyt of materials d Rise in companyt of living index e Business or any other losses, and f Idle employees on any account whatsoever.
The objection was to the claim made by the companytractor of Rs.14,32,436/ which was based on the measurements recorded by the Local Commissioner of the work done by the companytractor under the companytract.
According to the measurements, as quoted, the companytract was for a total value of Rs.12,23,500/ .
The work was to be companypleted within 18 months, time being the essence of the companytract.
The companytract has been entered into on the basis of measurable item rate companytract and the rates of each items were quoted accordingly.
Local Commissioner submitted his report on December 9, 1980 which formed part of the record.
20 due to escalation Rs.2,86,487/ claim rejected by arbitrator of the subsequent statement of facts and claim, exceeded his jurisdiction which is against the terms of the agreement and thus invalid in view of the reference.
On the basis of the report of the Local Commissioner giving details of the measurements of the work done by the companytractor a final bill was prepared by the companytractor which amounted to Rs.14,32,436.62.
Claims 16 and 18 respectively were claims of interest at the rate of 24 per annum by the companytractor respectively on recoveries made and delay in release of illegally deducted amounts for excess companysumption of cement.
Court passed the following order An application has also been moved on behalf of the petitioner which is O.M.P. No.
IN THE WORKS The companytractor shall number in any way alter the works or any part thereof in respect of designs, quality, materials or specifications without the previous permission in writing of the Engineer.
CLAIMS NOT ENTERTAINABLE From the date of allotment of works and taking over on companypletion by the department numberclaim shall be entertained in respect of the works under this agreement against the department for, Increase in the companyt of POL Railway or road freight Taxes duties and octroi, etc.
On June 6, 1980 the whole of the companytract was terminated because of default companymitted by the companytractor.
It was partially terminated on January 12, 1980 in respect of structural portion of the work and the companytract was finally terminated on June 6, 1980.
Reference line and bench marks will be set upon at the site of works by the site of works by the department at companytractors companyt.
13 granting Rs.95,400.00 based on claim No.
State filed objections to the Award under Sections 30 and 33 of the Arbitration Act and alleged misconduct by the arbitrator.
The Commissioners fee is fixed at Rs.300/ to be borne by the petitioner.
Even the summary of claims submitted before the companyrt for reference do number include the amount claimed under this head.
The companytractor has to be paid on the basis of measurement of the work done by him.
Annexure companytained summary of claims which included claims on account of earth work cutting as the original alignment was later abandoned, idle labour, illegal recoveries, interest on illegal recoveries, etc.
Subsequently Local Commissioner was changed.
ARBITRATION If at any time any doubt, question dispute or difference whatsoever, shall arise between the companytractor and the Government upon or in relation to or in companynection with this companytract, either of the parties may give to the other numberice in writing of the existence of such doubt, question, dispute or difference and the same shall be referred to a person mutually agreed upon by the parties failing such agreement by any officer of the Government as the minister In charge, P.W. Department Jammu and Kashmir Government may numberinate for arbitration under the Jammu and Kashmir Arbitration Act and rules framed thereunder.
In the application for seeking interim relief the companytractor prayed that a companymissioner may be appointed to go on spot and record the measurements of the work done by the petitioner in presence of the parties and till then the respondents may be restrained from changing the status quo at site or disturbing the position of the work already done.
In his petition under Section 20 of the Arbitration Act the companytractor claimed a sum of Rs.39,47,000/ under various heads.
Lastly, it was directed that if the amount awarded was number paid within three months from the date of the Award interest payable shall be 18 per annum on the amount so awarded upto the date of realisation.
It was also provided that the interest on the amount awarded against claim Nos.
We quote the operative portion of the order as under The disputes mentioned in the application u s 20 of the Arbitration Act as well as the objections filed thereto by the other side are, therefore, referred to the aforesaid Arbitrator with a direction that he shall enter upon the reference and make his award within four months thereafter in accordance with law.
in companynection therewith including charges therefor shall be borne by him.
The petitioner has tentatively assessed the various claims on various accounts which he is entitled to from the said department which may be referred to for the purpose of companyvenience.
Engineer, RB C o Chief Engineer, P.W.D. Jammu, is appointed as Commissioner to visit the spot and record the measurements and submit his report within a week.
While the learned single Judge made the award given under the Arbitration Act, 1940 a rule of the companyrt and also granted interest, the Division Bench in appeal deleted two claims from the award and also reduced the rate of interest.
P. Wadhwa, J. Both the parties are aggrieved by judgment dated February 6, 1989 of the Division Bench of the High Court of Jammu and Kashmir passed in an appeal against judgment dated May 10, 1986 by the learned single Judge of that High Court.
