IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.254 of 1994 Date of Decision: 3.3.2008 State of H.P. …Appellant. Versus. Madho Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma,, Judge. Whether approved for Reporting? For the Appellant: Mr.R.K.Bawa, Advocate General, with Mr. R.M.Bisht, Deputy Advocate General. For the Respondent: Mr. K.D.Sood, Advocate Deepak Gupta, J (Oral) The respondents, hereinafter referred to as the contractor, was awarded the work of laying of gravity main from Maigal to Zone E and F i.e. Khailar and Purani Mandi vide agreement No. 15/94 entered into between the parties. The agreement contained an arbitration clause. Disputes arose out of the contract which in terms of clause 25 of the agreement were referred for adjudication to an Arbitrator. Initially an award of Rs. 2,33,022/- was passed in favour of the contractor by the Arbitrator, Shri Y.R. Kashyap. 2 Objections were filed to this award and the same was set aside vide order dated 24th November, 1990. The matter was remitted to the Arbitrator to re- hear the parties and the Arbitrator was also directed to give a reasoned award. In the said order it was observed that in case Shri Y.R. Kashyap cannot proceed to make the award, the Chief Engineer may make a fresh nomination of an Arbitrator. Shri Y.R. Kashyap expressed his inability to proceed with the arbitration and thereafter Shri V.P.Mongra, Superintending Engineer, I.P.H. Circle, Dharamsala was appointed as the Arbitrator. He finally made an award of Rs. 4,13,971/- inclusive of costs and interest in favour of the contractor. The award was filed in the court in terms of Arbitration act, 1940. Notices were issued to the parties. Objections were filed on behalf of the appellant-State against the award. Admittedly the objections were barred by limitation by one day and the learned Single Judge found no reason to condone the delay. The learned Single Judge, however, proceeded to decide the objections on merits also and held the objections without any merit and rejected the same. Hence the present appeal. 3 As far as the issue of limitation is concerned, we are of the opinion that the order of learned Single Judge was unduly harsh. The delay in filing the objections was of one day only. This delay should have been condoned and we accordingly condone the delay and hold that the objections are within limitation. However, as far as the merits of the case are concerned, we find no ground to interfere in the order of the learned Single Judge. By now the law is well settled that the courts should not interfere in arbitration awards unless there are glaring and patent errors and compelling reasons to do so. The first point raised is that the Arbitrator has erred in making an award of Rs. 81,543/- against claim No. 1. The Arbitrator has found that the State had given unduly short time for recording the final measurement. Due to the short notice, it was not possible for the contractor to be present on the spot. The Arbitrator, therefore, came to the conclusion that the measurements made by the defendant in the absence of the contractor are not binding upon him. It was found that detailed measurements had been got done by the previous Arbitrator, Shri Y.R. Kashyap. through the Assistant Engineer. These measurements 4 have been recorded in the presence of the parties. The Arbitrator came to a finding of fact that measurements made during the arbitration proceedings were correct. This is a pure finding of fact which cannot be interfered with. The stand of the State is that in view of clause 8(a) of the agreement, the Arbitrator should not have made an adjudication. This contention is without any force since Rule 8(a) envisages that a reasonable notice must be given to a contractor to be present when measurements are taken. The finding of the Arbitrator is that an unduly short notice was given. As such this objection is rejected. The Arbitrator awarded Rs. 30,901/- to the plaintiff against claim No. 2 on account of security deposit. There is no reason given by the State as to why this security was deposited. The award of the Arbitrator, as affirmed by the learned Single Judge, is upheld. The main dispute revolves around claim No. 3 against which the Arbitrator has awarded a sum of Rs. 1,09,912/- to the contractor. The admitted case of the parties is that the initial alignment of the pipe line was changed vide letter dated 23rd May, 1985. This 5 was confirmed by the Arbitrator’s site inspection conducted on 10th January, 1992. The Arbitrator has found, as a fact, that the alignment of the pipe line was changed from time to time resulting in increase in the cost. He has also come to the conclusion that in the earlier alignment execution of the work was not difficult, but in the changed alignment the terrain was difficult and, therefore, additional expenditure had to be incurred. Immediately after the alignment was changed, the contractor had issued notice to the State that he would do the work on the changed alignment at a rate of 20% over and above the tendered rates. Despite this clear notice on behalf of the contractor, no response was sent by the department. The stand of the department is that in terms of clause 12 the rates should have been derived from the works already awarded. The Arbitrator has held, and rightly so, that the works awarded in the contract went through easier terrain and could not be compared with a terrain from which the pipe line had to be taken due to the changed alignment. The Arbitrator accepted the version of the contractor, especially in view of the fact that the notice issued by the contractor had not been refuted by the State. Once the Arbitrator 6 found that the changed alignment had to go through a more difficult terrain, there was no way that the rates cold have been derived from the existing rates since existing rates related to the pipe line being taken through an easier terrain. The award of the Arbitrator has rightly been upheld by the learned Single Judge. There are some other minor awards which are not seriously challenged before us. The appeal is without any merit and is accordingly dismissed with no order as to costs. ( Deepak Gupta ), J. March 3, 2008(K) ( Rajiv Sharma ), J.