M/S. Harish Chandra & Company vs State Of U.P. Thr. Superintending Eng

3) Facts of the case need mention, in brief, infra to appreciate the controversy involved in the appeal.

4) The appellant herein is a civil contractor whereas the respondent is the State of U.P. represented through Superintending Engineer Irrigation Construction Circle, Yamuna Colony, Dehradun.

8) Disputes of various nature arose between the parties in execution of both the agreements. The disputes were related to the completion of works, its nature, manner of its completion, non-payment and withholding of appellant's bills, deduction of amount from the bills etc.. Since the disputes could not be settled amicably, the parties invoked the arbitration clause (1.47) contained in the agreements and approached the Civil Court for appointment of arbitrator and for making references to him for adjudication of the disputes which had arisen between them in relation to 2 agreements. The request was acceded to and accordingly some disputes were referred to the sole arbitrator.

10) Consequent upon the reference made to the arbitrator insofar as the present appeal is concerned, the appellant (claimant) filed 6 claims (claim Nos. 12 to 17) before the sole arbitrator (Mr. Harish Chandra - retired Chief Engineer). The details of the 6 claims made by the appellant against the respondent (State) are as under: -

|13. |Claims due as payment |Rs. 11,62,650.00 along | | |on account of |with interest at 24% | | |non-payment after |per annum from 1.6.86 | | |30.9.85. |to the date the amount | | | |is actually paid. | |14. |Payment due as claim |Rs. 1,04,426.00 along | | |on account of wrongful|with interest at 24% | | |deduction of Security.|per annum from 1.5.85 | | | |to the date the amount | | | |is actually paid. | |15. |Payment due as claim |Rs. 5,51,250.00 along | | |on account of extra |with interest @ 24% per| | |excavation. |annum from 1.6.86 to | | | |the date the amount | | | |actually paid. | |16. |Payment due as claim |Rs. 4,59,200.00 along | | |on account of dressing|with interest @ 24% per| | |done on slopes of |annum from 1.6.86 to | | |filled earth in |the date of amount | | |embankments from Km. |actually paid. | | |9.00 to KM. 9.80 | | |17. |Stopping the |Order respondents to | | |respondents from |accept our measurement | | |deducting any quantity|for excavation on | | |of excavation done by |31.5.86. | | |petitioner because of | | | |sitting in the monsoon| | | |year 1986 and onwards,| | | |if any. | |

11) The respondent (State) contested the aforementioned claims by filing their reply. The State also filed their counter claims against the appellant claiming damages. The appellant contested the counter claims by filing their reply. The parties adduced evidence and examined several witnesses in support of their respective claims.

12) On 27.11.1995, the arbitrator passed a reasoned award. Out of 6 claims, the arbitrator allowed appellant's 3 claims, i.e., claim Nos. 12, 13 and 17 and rejected the claims Nos. 14, 15 and 16. The arbitrator also rejected the counter claims of the respondent (State) in toto. The details of the claims awarded and rejected are as under:

18.Now we proceed to scrutinize the claims awarded by the Arbitrator to the contractor.

39) The arbitrator in Paras 19 to 36 of the award examined these issues on the basis of the evidence adduced by the parties and held that the appellant has done the work in question and, therefore, they were entitled to claim its price for the work done. Though the appellant, in their claim petition, claimed the money at the rate of Rs.30 per Cu M but the arbitrator did not accept the rates claimed by the appellant and instead awarded the amount to the appellant at the rate of Rs.12.97 per Cu.M.

41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellant's favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator.

42) We have not been able to notice any kind of perversity in the arbitrator's reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the same.

44) In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court.

45) As a result, the appeal succeeds and is accordingly allowed. Impugned order is set aside and that of the Trial Court restored.

In Special Leave Petition (c) No. 23950 of 2007 As prayed for, the petitioner is permitted to withdraw this special leave petition with a liberty granted to the petitioner to file review petition before the High Court. In the event of review petition being dismissed, the petitioner would be at liberty to challenge the impugned order including the order in the review petition.

With the aforesaid liberty, the special leave petition is dismissed as withdrawn.

September 08, 2016