Case: M/S. Sathyanarayana Brothers (P) Ltd Vs. Tamil Nadu Water Supply &amp; Drainage Board

handover note just with a view to emphasize the relevance and importance of the said note which is document D-660. A copy of the same has been filed in this Court. In Paragraph 6.1.7 and 6.1.7.1. it is indicated that Department had to carry out the work of trench excavation, the service roads, river, rail and road crossings besides many other things enumerated therein. Para 6.1.10 deals with requirement of foreign exchange and the details thereof. In Paragraph 6.1.10.3 the delay in arrival of the machinery imported due to Indo-Pakistan war is also indicated. Paragraph 6.11 deals with the factors that contributed to delay in execution of the project. Thereunder it is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well. 15. Learned counsel for the appellant has placed reliance upon a decision reported in (1975) 2 SCC 236 - K.P. Poulose vs. State of Kerala and another to indicate that where it is a speaking award and the arbitrator fails to take note of the relevant documents or ignores the same, it vitiates the award. It was observed such documents which were ignored were material documents to arrive at a just and fair decision to resolve the controversy between the parties. Our attention has particularly been drawn to the observations made in Paragraph 4 which reads as under: "We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ex.P-11 and Ex. P-16 are material documents to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Ex.P-11 and P-16 for the purpose of a just decision. Ex. P-11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by audit in connection with the construction of the reservoirs..." (emphasis supplied by us)Reliance has also been placed upon a decision reported in (2001) 5 SCC 629 - Sikkim Subba Associates vs. State of Sikkim, particularly to the observations made in Paragraph 12 of the decision that an award, ignoring very material and relevant documents throwing light on the controversy to have a just and fair decision would vitiate the award as it amounts to misconduct on the part of the arbitrator. The case of K.P. Poulose (supra) has also been referred to. Yet another decision on the point referred to is reported in (2003 (7) Scale Page 20 - Bharat Cocking Coal Ltd. vs. M/s. Annapurna Construction where also it has been held that passing award ignoring the material document would amount to mis-conduct in law. In such circumstances the matter was remitted to a retired Judge of the Jharkhand High Court instead of to the named arbitrator since only the question of law was involved and the parties had also agreed for the same. 16. In so far the case in hand is concerned, learned counsel appearing for the respondent first made a submission that no application was moved by the appellant before the arbitrator for summoning the document, namely, the handing over note prepared by the Chief Engineer while handing over the charge as Project in-charge to his successor but after verification he conceded that such an application was moved before the Arbitrator but no orders had been passed on it. The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but refused.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]repel the contention raised on behalf of the appellant pertaining to the jurisdiction of the arbitrators and the umpire to decide theit is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well.The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but