IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.484 of 2004 1. M/S Ajanta Construction Company, F-175, Kankarbagh People's Co-operative Colony, Kankarbagh, Patna-800020. 2. Tarkeshwar Nath Dixit, son of Sri M. N. Dixit, Attorney of the Firm namely, M/S Ajanta Construction Compnay. …(Awardee-Petitioners in the court below). ………Appellants. Versus 1. The State of Bihar. 2. The Superintending Engineer-cum-Arbitrator. Rural Engineering Organisation, Work Circle, Chapra, District- Saran. …..(Arbitrator-Opposite Party No.1 in the court below).. 3. The Executive Engineer, Rural Engineering Organisation, Works Division, Siwan. …..(Opposite Party No.2 in the court below). 4. The Assistant Engineer, The Rural Engineering Organisartion, Works Subdivision, P.O.-Mairwa, Siwan…..(Opposite Party No.3 in the court below). 5. The Chief Engineer-II, Rural Engineer Organisation, Patna, Vesheshariya Bhawan, Bailey Road, Patna. ….(Opposite Party No.4, in the court bleow). 6. The Engineer-in-Chief, Rural Engineering Organisation, Vesheshavariya Bhawan, Patna. …(Opposite Party No. 5, in the court below). ………Respondents. For the appellants :- Smt. Rekha Prasad, Advocate. For the respondents:- Kr. Uday Bhanu Roy,G.A.4. Mr. H. Sundaram, A.C. to G.A.4. ----------- 12. 10.11.2010. This Miscellaneous Appeal is directed against the order dated 27. 08. 2004 passed by Sub Judge I, Siwan, in Miscellaneous Case No. 64 of 1995/Miscellaneous Case No. 46 of 1996 filed by the appellant for declaring the award dated 04.08.1995 as illegal. 2. The case of the appellant that appellant is registered partnership firm and they do contract work 2 and entered into contract for construction of R.C.C. culvert after acceptance of the tender, but work was not completed within time as per agreement and it is alleged that, though, appellant requested several times to supply cement for work but in vain and so the work could not be completed and the appellant has to incur heavy loss as he had to paid wages of idle labourer and other material brought on the spot like sand chips, iron rods etc. and so the appellant claim a loss of Rs. 2,84,300/-. 3. However, as per terms of the agreement the matter was referred for arbitration to respondent no.2, who after hearing the parties passed the impugned order that respondent no. 3 is responsible for not completing the work and granted award only Rs.54,000/- and it has been asserted that amount of Rs. 54,000/- includes Rs. 49,000/- as security money and rest of the amount is to wages of the labourer. 4. Hence challenge the award as illegal and arbitrary. 5. The said award was challenged in Miscellaneous Case No. 64 of 1995/46 of 1996 before the learned Sub Judge I, Siwan and Sub Judge I, Siwan, rejected the miscellaneous petition on ground that the cause of action of the contract arose prior to 3 1996 and the Arbitration Act 1996 has come in force on 25th January and prior to this Act, the old Arbitration Act 1940 was in operation and the occurrence is of the year 1995 and hence old Arbitration Act, 1940 will be applicable. The Tribunal further held that Section 30 of the Arbitration Act 1990 provides the ground for rejecting the award as follows; (a) if the arbitrator has himself involved in corruption; (b) if the story of arbitration proceeding has been declared as illegal; ( c) if the award is illegal and has been obtained by illegal means; and has held that award has not been challenged on the ground available for challenge under Section 30 of the Arbitration Act and the ground on which the award has been challenged by the appellant is not available to the appellant. 6. Learned counsel for the appellant however, contended that award has been challenged on the facts but learned court below has not considered those facts that appellant had collected the stock like stones, bricks, sand stones and engaged labourer for construction, but the work could not be done due to non-supply of cement and the court below ought to 4 have considered that the agreement between the appellant and respondent no. 3 was for completion of work within one year, but lay out plan was provided by department after more four months from the date of the agreement and the arbitrator has only gave the award to return the security deposit and by way of wages, but has not given any finding regarding cost and material which was stocked at the site and the court below has not considered the letter sent by appellant and harassing attitude of the respondent. 7. The learned counsel for the respondents however, contended that award of the arbitrator or the reasoning given by arbitrator can not be challenged and only point available to the appellant is grounds as mentioned in Section 30 of the Arbitration Act. 8. From the respective submissions of the parties, the question for consideration whether the order of the Sub Judge I is sustainable in law. 9. However, the award has been challenged on the ground that there was contract to complete the work within one year, the work could not be completed within one year, hence dispute arose and mater refer to arbitration in terms of the contract. It is alleged that work could not be completed due to fact that plan of the work was provided after four months and further the 5 cement as per agreement was to be provided by the department, but the department did not provide cement. Hence the appellant occurred loss due to fact that he had to stock the raw material in anticipation for completing the contract, he has also to keep labourer for the work who had to be paid even when no work could be done due to fact that respondent did not provide cement and plan. 10. However, the agent enter into the arbitration award and even filing of the case before arbitration is prior to the operation of Indian Arbitration Act, 1996 came into force and Section 85 (1) provides that Indian Arbitration Act 1940 is repealed, but Section 85(2) provides that notwithstanding the repeal of Arbitration Act 1940, it shall be applicable in case which has commenced prior to the coming of Indian Arbitration Act 1940. 11. Section 30 of the Arbitration Act, 1940 has 3 clauses stating ground available on which the award can be challenged to set aside the award. Those grounds are whether the arbitrator has misconduct himself or whether the award was made after the arbitrator was superceded or whether the arbitration proceeding became invalid and further if the award challenge on these grounds the notice had to be given 6 to the arbitrator that award was improperly procured and was otherwise invalid. 12. However, apparently grounds made out or taken in appeal and submission made challenging the award does not covers ground on which award can be challenged under Section 30 of the Indian Arbitration Act. This court can not go into merits of the reason given in award by the arbitrator or fact mentioned in arbitration award and the ground on which award can be challenged as per Section 30 of the Arbitration Act has not been taken or none of ground which has been taken in appeal covers under Section 30 of the Arbitration Act and the court can not go into merits of the reason of the award granted or any other ground except under Section 30 of the Indian Arbitration Act 1940 and hence, I do not find any merit in the submission to go into the question of fact, the reason given by the Arbitrator or to appreciate the finding of fact recorded by the Arbitrator and hence I do not find any merit in this appeal and hence this Miscellaneous Appeal is dismissed. m.p. ( Gopal Prasad, J.)