C.R.No.3155 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No.3155 of 2008 (O&M ) Date of Decision: November 03, 2009 M/s Emm Enn Associates ...........Petitioner Versus Union of India and others ..........Respondents Coram: Hon'ble Mrs.Justice Sabina Present: Petitioner in person None for the respondents Sabina, J. (oral) This revision petition filed under Article 227 of the Constitution of India is for setting aside/modifying impugned order dated 2.3.2007 passed by the Additional District Judge Chandigarh vide which he has erroneously modified the judgment and decree dated 6.10.2004 passed by the Civil Judge (Junior Division) Chandigarh making the award dated 30.3.1998 as Rule of the Court by setting aside claims No. 7 and 23. Appellant was entrusted with construction work for making provision of fire fighting in building No.163 at Chandi Mandir by the Commander Works Engineer Chandigarh (on behalf of Union of India). After the execution of the work, final bill was presented by the petitioner. However, the dispute arose between the parties regarding the payment and C.R.No.3155 of 2008 (O&M) 2 the claim was filed before the Arbitrator. The Arbitrator gave the award dated 30.3.1998. The said award was made Rule of Court by the Civil Judge (Junior Division) Chandigarh vide judgment and decree dated 6.10.2004. Aggrieved by the same, Commander Works Engineer- respondent No.3 on behalf of Union of India preferred an appeal. In appeal, the award was upheld by the Additional District Judge Chandigarh except qua claims No. 7 and 23. Hence, the present revision petition by the Contractor. After hearing the petitioner, I am of the opinion that the instant revision petition is deserved to be allowed. Claims No. 7 and 23 submitted by the Contractor read as under:- “Claim No.7: On account of payment due for stoppage of work due to visits of VIPs, Conferences or for other Administrative/Security reasons Original Claim: Rs.15,000.00 Revised Claim: Rs.20,908.00 Claim No.23: On account of payment due for loss on account of delay in communicating pending decisions. Original Claim; Rs.20,000.00 Revised Claim: Rs.45,375.00” While dealing with the said claims, the Arbitrator held that on account of stoppage of works due to visit of VIPs, Conferences or other Administrative/Security reasons and on account of delay in communicating pending decisions, the labour employed by the Contractor remained idle and the Contractor had to make the payment to the idle labour and,consequently, the Contractor was liable to be compensated. While dealing with claim C.R.No.3155 of 2008 (O&M) 3 No.7, the Arbitrator found that the work had been stopped for 66 days and,hence, the compensation claimed by the Contractor was justified. The Contractor was allowed Rs.18,585/- qua the said claim. So far as claim No.23 is concerned, the Arbitrator found that the labour remained idle for 208 days and Rs.20,800/- were awarded for compensation to the Contractor qua claim No.23. It has been held by the Apex Court in M/s Sudarsan Trading Co. vs. The Govt. of Kerala and another AIR 1989 Supreme Court 890 which reads as under:- “Once there is no dispute as to the contract what is the interpretation of that contract, is a matter for the arbitrator and on which court cannot substitute its own decision. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded, is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Therefore, the High Court had no jurisdiction to examine the different items awarded clause by clause by the arbitrator and to hold that under the contract, these were not substainable in the facts found by the arbitrator. MFA NO.s 72,346 and 380 of 1983, D/-5-5-1988 (Ker). Reversed (1987)1Ker LT 781, Overruled. In the instant case the court had examined the different claims no to find out whether these claims were within the disputes referable to the arbitrator, but to find out whether in arriving at the decision, the arbitrator had acted correctly or incorrectly. This, the court had no jurisdiction to do, namely, substitution of its own evaluation of the conclusion of law or fact C.R.No.3155 of 2008 (O&M) 4 to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the competency of the arbitrator. By purporting to construe the contract the court could not take upon itself the burden of saying that this was contrary to the contract and, as such, beyond jurisdiction. It has to be determined that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy.” In Food Corporation of India vs. Joginderpal Mohinderpal and another AIR 1989 Supreme Court 1263, it has been held as under:- “In the instant case, the arbitrator has chosen to make a speaking award, that is to say, he has given reasons for his conclusion, whether he is obliged to give such reasons or not is another matter but since the arbitrator had chosen to give the reasons, unless it is demonstrated to the Court that such reasons are erroneous as such propositions of law or a view which the arbitrator has taken is a view which it could not possibly be sustained on any view of the matter, then the challenge to the award of the arbitrator cannot be sustained. The arbitrator had construed the effect of particular clause of the contract. It cannot be said that such a construction is a construction which is not conceivable or possible. If that is the position assuming even for the argument that there was some mistake in the construction, such a mistake is not amenable to be C.R.No.3155 of 2008 (O&M) 5 corrected in respect of the award by the Court. The order of the arbitrator was a fair order after considering all the records and the conclusion arrived at by him is a plausible conclusion, therefore, the Court has no jurisdiction to interfere or modify the award”. Thus, the Arbitrator, after appreciating the evidence on record had given the award. The claim of the Contractor qua 7 and 23 had, thus, been rightly allowed by the Arbitrator as the Contractor had suffered a loss on account of stoppage of work due to VIP duty etc. and due to delay in communicating pending decisions. Learned District Judge had erred in holding that claims No. 7 and 23 were barred in view of clause 11(c) of the Contract. Clause 11 of the Contract, reproduced in grounds of revision, reads as under:- “11. Time, Delay and Extension- (A) Time is of the essence of the contract and is specified in the contract documents or in each individual works order. As soon as possible after contract is let or any substantial works order is placed and before work under it is begun, the G.E. and the contractor shall agree upon a Time and Progress Chart. The Chart shall be prepared in direct relation to the time stated in the contract documents or the works order for completion of the individual items thereof and/or the contract or works order as a whole. It shall indicate the forecast of the dates for commencement and completion of the various trade processes or sections of the work, and shall be amended as may be required by agreement between the G.E. And the contractor within the limitation of time imposed in the contract documents or works C.R.No.3155 of 2008 (O&M) 6 order. If the works be delayed:- (i) by force majeure,or (ii) by reason of abnormally bad weather,or (iii) by reason of serious loss or damage by fire, (iv) by reason of civil commotion, local combination of workmen, strike or lockout, affecting any of the trades employed on the work,or (v) by reason of delay on part of nominated sub-contractors, or nominated supplies which the contractor has, in the opinion of G.E., taken all practicable steps to avoid, or reduce, or (vi) by reason of delay on the part of contractors or tradesmen engaged by Government in executing works and forming part of the contract, or (vii) by reason of any other cause, which in the absolute discretion of the Accepting Officer is beyond the Contractor's control; then, in any such case the officer hereinafter mentioned may make fair and reasonable extension in the completion dates of the individual items or groups of items of works for which separate periods of completion are mentioned in the contract documents or works order, as applicable. Upon the happening of any such event causing delay, the contractor shall immediately, but not later than 30 days of the happening of the event, give notice thereof in writing to the G.E. But shall nevertheless use constantly his best endeavor to prevent or make good the delay and shall do all that may reasonably be required to the satisfaction of the G.E. to proceed with the works, extension C.R.No.3155 of 2008 (O&M) 7 of time shall be granted as under:- a) by G.E. for all Term Contracts; b) by Accepting Officer of the contract for all other contracts In case the contractor fails to notify the G.E. of happening of an event(s) causing delay within the period of 30 days stipulated in sub-para 3 above, he shall forfeit his right to claim extension of time for the delay caused due to such event(s). Extension of time,as granted above, shall be communicated to the Contractor by G.E. in writing and shall be final and binding. Provided that in case of contracts (other than Term Contracts) accepted by G.E., in the event of the contractor not agreeing to the extension granted by the G.E., the matter shall be referred to the C.W.E. whose decision shall be final and binding (B) If the works be delayed:- (a) by reason of non-availability of Government stores, mentioned in Schedule `B'; Or (b) by reason of non-availability or breakdown of Govt. Tools and Plant mentioned in Schedule `C'; then, in any such event, not withstanding the provisions hereinbefore contained, the G.E. may in his discretion grant such extension of time as may appear reasonable to him and the Contractor shall be bound to complete the works within such extended time. In the event of the Contractor nor agreeing to the C.R.No.3155 of 2008 (O&M) 8 extension granted by the Garrison Engineer, the matter shall be referred to the Accepting Officer (or C.W.E. in case of contract accepted by Garrison Engineer) whose decision shall be final and binding. “11(C) No claim in respect of compensation or otherwise, however, arising, as a result of extensions granted under Conditions(A) and (B) above shall be admitted” . However, the present case did not fall under extension granted to the Contractor for completion of contract. Rather the claim of the Contractor was that when the work was stopped due to VIP visits or conferences etc. or due to delay in communicating of pending decision, the work had to be stopped and the labour had remained idle. The Contractor was required to make the payment to the idle labour. In these circumstance, the Arbitrator rightly held that the Contractor was liable to be compensated with regard to claims No. 7 and 23. The learned Additional District Judge has erred in disallowing the claim of the contract qua claims No. 7 and 23 by placing reliance on clause 11(c) of the contract. In the facts and circumstances of the present case, the award passed by the Arbitrator could not be set aside qua claims No.7 and 23 by the lower Appellate Court. Accordingly, this revision petition is allowed. The impugned judgment and decree are modified to the extent that the award dated 30.3.1998 has rightly be made Rule of Court. ( Sabina ) Judge November 03, 2009 arya C.R.No.3155 of 2008 (O&M) 9