1 IN THE HIGH COURT OF BOMBAY AT GOA. APPEAL UNDER ARBITRATION NO.16 OF 1996 1. State of Goa, through Chief Secretary, Government of Goa, Secretariat, Panaji – Goa. 2. Chief Engineer, Public Works Department, Altinho, Panaji Goa. 3. Chief Engineer, Irrigation Department, Junta House, Panaji Goa. 4. Executive Engineer, Works Division XIII, Irrigation Department, Sanguem Goa. ... Appellants. v e r s u s 1. Shri Pedro Filipe Francisco Cardozo, Contractor, major, married, Indian National, r/o. at Xavier's, Raia, Salcete Goa. (deceased) 2 1-a. Mrs.Santana R. Cardozo (widow), aged about 60 years and residing at House No. 1091, St. Xavier's Raia, Salcete, Goa. 1-b. Mr. Marcus Rcardozo (son) aged about 37 years 1-c. Mrs. Vrushai M. Cardozo, (daughter-in-law) aged about 35 years, Both residing at Flat No.2, 2nd Floor, New Horizon, D. B. Bandodkar Marg, Miramar, Goa. 1-d. Miss Viency Cardozo, (daughter) aged about 34 years, 1-e. Mr. Oswald Cardozo (son) aged about 32 years, Both residing at House No.1091, St. Xavier's Raia, Salcete, Goa. ...Respondent. Mr. G. Shirodkar, Advocate for the Appellants. Mr. S. Dessai, Advocate for the Respondent. 3 CORAM: SHRI A. H. JOSHI., J. DATE: 21st JULY, 2009. JUDGMENT: 1. This is an appeal by State Government against the Judgment and Order dated 12th June, 1995 passed by the learned Civil Judge Senior Division at Quepem in Special Civil Suit No.28/87, making the arbitral award the rule of court and rejecting appellant's objections to the award. The case is under Act of 1940. 2. The arbitrator had granted following claims as against the actual claim as follows:- Claim No. Amount claimed Amount awarded 1. Declaratory Award Declared that rescission is illegal 2. Rs. 7,584.00 Rs.Nil 3. Rs.3,13,600.00 Rs.1,20,000.00 4. Rs. 78,000.00 Rs. 45,000.00 5. Rs.1,02,949.96 Rs.60,000.00 6. Rs. 33,710.00 Rs. 33,710.00 7. Rs. 27,707.19 Rs. 22,489.57 8. Interest @ 18%p.a. @ 15% p.a.from 3.1.85 till payment or Decree 4 whichever is earlier. 9. Costs Rs.20,000.00 Nil Say Rs.2,81,199.57 Rs.2,81,200.00 3. The award was challenged before the trial court inter alia on following grounds :- “4. The Arbitrator has erred in holding that the shifting of high tension and low tension lines and telephones caused the obstruction. The Claimant has relied on his letter NO.C-12 dated 28.10.1982 about such obstruction when the stipulated date for completion of the work was already over. 5. The Arbitrator has erred in accepting the version of the Claimant that the construction of diversion road was an obstruction. The Arbitrator ought to have observed that special condition 19(b) on page 75 of the agreement requires the Claimant to construct diversion road at his cost. Any failure by the Claimant to deal therewith at the appropriate time cannot result in shifting the blame on the Respondents. The Arbitrator has erred in awarding Rs. 1,20,000/- under Claim No.3 when the facts clearly indicate that the Claimant is responsible for the delay caused”. 4. Various grounds available and unavailable on facts and law have been raised in the appeal. 5. This court has perused the record. Decision on item No.1 which is 5 in relation to delay in completion of work and therefore decision on the point of recession is would decide the fact of all claims. 6. It would be necessary and useful to advert to discussion contained in arbitral award on the point of recission, which is found at page 16 of paper book. Relevant findings and observations read as follows:- “ It is the case of the Claimant that the Respondents failed to hand over to him the entire site for execution of the work immediately after the issue of the Work Order and that the extract width of space which was required for approach roads was acquired by the Respondents afater quite a long length of time. The Respondents in para 6 (i) of their reply have aadmitted that the land acquisition proceedings for the additional land required for the approach roads along the existing road were completed on 4.3.1982. It is to be noted here that the date stipulated for completion of the work was 29.8.1981. Thus there was a prima facie delay on the part of the Respondents which has been explicitly admitted by the Respondents. In addition, the Claimant has stated in Exhibit C-15 dated 16.12.1982 that Land Acquisition could not be completed till March, 1982 and therefore he could not complete the orad embankmant. The Respondents on the other hand after refering to Exh. R-1, R-2, R-3, R-4, and R-5 contended that although the land acquisition 6 formalities were completed late, the Claimant's work was not held up. This contention of the Respondents is not correct in view of Exh. C-13 dated 16.12.1982, Exh.C-17 dated 21.11.83, Exh.C-29 dated 24.4.1984, Exh.C-34 dated 7.5.84, since no positive reply was given to the Claimants above letters. I, therefore, hold that there was delay on the part of the Respondents in making aavailable to the Claimant areas required for continuous work. Strangely, two of the Respondent's above cited letters (Exh. R-1 and R-2) refer mainly to fair whether conditions and none of them mention about the availability of workable areas. The next allegation made by the Claimant is that the Respondents committed serious delays in getting shifted high tension electric lines and telephone poles, existing on the site of the work. The Respondents in para 6 (ii) of their reply have admitted that the electric high tension line was shifted on 28.1.1983, whereas the date stipulated for completion of the work was 29.8.81. Thus even according to the Respondents, there was a delay of 17 months in shifting the electric lines. It was also the contention of the Respondents that this delay in shifting the electric line was not a ground for delay in completion of the work as the Claimant could have executed the work of the canal for which the electric line did not cause any hindrance. They relied upon statement at Annexure RA-1 in support of their contention. This contention of the Respondents was not agreed to by the Claimant. In order to know the correct position at the site, I 7 directed the Respondent during the course of the hearing to produce before me the site plan of the work, but the Respondents pleaded inability to produce the same. There upon the Claimant produced before me on 18.2.1994, a sketch plan of the site, alongwith his arguments-in- rejoinder. This plan has been very helpful in getting to appreciate the difficulties at the site, such as height of the embankmant, the clearance from the embankment level to the electric high tension line etc. The Claimant also read during the hearing, Exhibits C-12 dated 23.10.82, Exh.C-15 dated 16.12.82 which mentions that Low tension line was shifted in March 82, Exh.C-16 dated 9.1.83 complaining that high tension line had not been shifted till that date, and finally Exh.C-23 dated 3.3.83 where in the Assistant Engineer of the Respondents has admitted that the high tension electric line which was obstructing the work has been shifted. I, therefore hold that there was a delay of 18 months beyond the date originally stipulated for completion of the work, on the part of the Respondents in getting shifted the electric high tension line. The next breach of contract attributed by the Claimant to the Respondents is the delay in providing spaace for construction of diversion roads. This has bee flatly denied by the Respondents in their reply at para 6 (iii) and the Respondents relied on Exhibits R-6, R-7, R-8, R-9, R-10 and R-11. A careful study of the site plan produced by the Claimant alongwith examination of Exhibits C-7 dated 6.8.82, Exh.C-15 dated 16.12.82 and Exh.C.41 dated 28.10.85 leads me to conclude that there was delay on the 8 part of the Respondents in making available additional land needed for the approach road embankments, and unless approach road embankments were completed, the Claimant could not remove the diversion roads, and unless the diversion roads were removed the Claimant could not complete the canal embankment and suction. The work of approach road embankment was also held up because of non removal of the electric High Tension Line referred to above in earlier para”. (Sub paragraphing is done for convenience. Portion quoted is from pages 16 to 18 of paper book). 7. Since it revelas that delay in making site available for work is caused by and on the part of appellant, it is not open to the State Govt., to blame the contractor for delay. This being so, it is evident that the employer had no right to rescind the contract and said recession would and amounts to wrongful act of termination amounting to breach. It is therefore clear that finding and reply to item No.1 granted by arbitractor is legal, proper and it will supported by facts and records of the case. 8. Therefore finding on claim No.1 is not assailable. 9. Item on award at Sr.No.3 is under criticism. Award under this head is of Rs.1,20,000/- though claim was Rs.3,13,600/-. 9 10. Admittedly period of contract was less than 8 months. Site clearance was done almost beyond 2 years after outer date fixed for completion of work. 11. It is unimaginable that a contractor would deploy all his paraphernalia when site is not handed over. Moreover discussion on claim No.3 reveals that a sum of Rs.188 lakhs was claimed towards loss of anticipated profits. Foundation of the said claim is argumentive, and it is rightly declined. 12. Remainder Rs.1,25,600/- which is towards increased expenditure and over heads. As observed earlier in this para, no contractor would keep his men, money and material idle for a long duration of 3 years, and would rather resind the contract by his positive act, which has not been done by the contractor. 13. Therefore present is a case of connivance or condonation of lapses of employer by the contractor, and therefore contractor is not entitled for any amount under claim No.4. This court is at the same time not oblivious to grant of claim No.4, which provides due shock absorber for minor shock which the contractor may have suffered. Therefore the award of sum of Rs.1,20,000/- is not 10 supported by any ground whatsoever. 14. The interest of justice shall meet if the item No.3 awarding Rs.1,20,000/- is set aside. 15. Now coming to challenge to various other heads of award either in the objections raised before trial court or before this court by way of grounds of appeal no special challenge to the fact which are the basis of findings recorded by arbitrar, has been done challenge. In the result, the award turns to be a challenge without using specific grounds and a bald challenge. 16. This court finds upon security of award in relation to item No.2, 4 to 8 is supported by most plausible reasons. Moreover payment under these heads has not been challenged by raising specific contentions. The award under these heads therefore does not call for further expence of time and exertion. 17. Result which has to follows is that ward of Rs.2,81,290/- is reduced by Rs.1,20,000/- towards the amount was awarded towards item No.3. After this reduction, the award shall be for Rs.1,61,200/- and with interest on 15% p.a. w.e.f. 3.1.1985, thereon till realization of full amount. 11 18. Order accordingly by partly allowing the appeal. 19. In the circumstances, parties shall bear own costs. A. H. JOSHI, J. ah/-