Bharat Coking Coal Ltd vs M/S L.K.Ahuja & Company

We have adverted in detail to the consideration of the claim on payment of material escalation earlier. The terms of the contract in this regard indicate as follows:

Clause 17: The contractor shall supply at his own cost all materials (except such special materials, if any, as may be in accordance with the contract be supplied from the Engineer-in-Chiefs stores), plants, tools, appliances, implements, ladders, cordage, tackle, scaffolding, and tempers, works requisite or proper for the proper execution of the work whether original, altered or substituted and whether included in the specification or other documents forming part of the contract or referred to in these conditions or not or which may be necessary for the purpose of satisfying or complying with the requirements of the Engineer-in- Chief as to any matter as to which under these conditions he is entitled to be satisfied, which he is entitled to require together with carriage therefore, to and from the work. The contractor shall also supply without charge the requisite number of persons with the means and materials necessary for the purpose of setting out works, and counting weighing and assisting in the measurement or examination at any time and from time to time of the work or materials. Failing his so doing, the same may be provided by the Engineer-in-Chief at the expense of the contractor and the expenses may be deducted from any money due to the contractor under the contract from his security deposit or the proceeds of sale thereof, or of a sufficient portion thereof. The contractor shall also provide all necessary fencing and lights required to protect the public from accident, and shall be bound to bear the expenses of defence of every suit, action or other proceeding at law that may be brought by any person for injury sustained owing to neglect of the above precautions, and to pay any damages and costs which may be awarded in any such suit, action or proceeding to any such person or which may with the consent of the contractor be paid to compromise any claim by any such person.

It is not clear from the pleadings whether the claim made by the respondent is in respect of escalation in the costs of material such as plant, tools, appliances, implements, ladders, cordage, tackle, scaffolding, and tempers, works, etc. inasmuch as the appellant has the obligation to supply the most essential building materials such as cement, steel and such other building material. It is also not clear either from the pleadings or from the award as to whether the escalation claim is in respect of the materials provided by the respondent or in respect of escalation arising from delay in non-supply of materials which was due to be supplied by the appellant. So far as the plant and other equipments are concerned, they had already been provided for the purpose of the execution of the work and how the delay in non-supply of building materials such as cement, steel, etc. caused escalation so far as the building materials provided by the appellant is concerned is not clear. The arbitrator has not applied his mind to this aspect of the matter at all. Having lost sight of the importance of clause 17 and application of the same to the circumstances of the case will clearly disclose that there is an error apparent on the face of the award. The claim under this head is Rs.40 lacs with reference to the first agreement and Rs. 25 lacs with reference to the second agreement which is the major chunk being nearly half the claim made by the respondent. In what manner this aspect has gone into in fixing the lumpsum by the arbitrator is not discernible. Therefore, we have no option but to set aside the entire award in respect of both the agreements made by the arbitrator and remit the matter. We propose that a new arbitrator be appointed in place of the old arbitrator because the arbitrator has dealt with the matter himself as an officer who had correspondence with the contractor at the time when he was an officer of the appellant. Therefore, it is fair neither to the appellant nor to the respondent to continue him as an arbitrator in the proceedings.

In so far as the other appeal is concerned, certain additional contentions have been addressed by the respondent and they are based on Article 119 of the Schedule to the Limitation Act which provides that an application for setting aside an award or getting an award remitted for reconsideration, the period of limitation is fixed as 30 days from the date of the service of the notice of the making of the award. As stated earlier, the award had been filed in the court and the notice of which had been served upon the appellant in Title [Arbitration] Suit No.40/86 and the objection had been filed. Service of notice has been made on the appellant on 13.7.1990 and the objection in question had been filed on 18.8.1990, while it should have been filed on or before 12th August, 1990. The learned counsel for the respondent in this regard relied on the following observations made by this Court in Madan Lal vs. Sunderlal & Anr., 1967 (3) SCR 147:

It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limitation. [p.151]

It is obvious from these observations that even an objection setting out the grounds specified in Section 30 of the Arbitration Act would amount to an application as contemplated under Article 119 of the Schedule to the Limitation Act and, therefore, such objection will have to be filed within the period of limitation. Courts have taken the view that inasmuch as agreement of reference to arbitration is an instrument of solemn character, which is binding on the parties, and so is the award; if, therefore, a party desires to avoid the effect either of the agreement or the award, he must strictly comply with the provisions of the law and an objection to the award must be filed within the time which cannot be extended. In certain circumstances, courts have taken the view that by granting time to file objection the Court had impliedly extended the time even without a formal application under Section 5 of the Limitation Act. An application for condonation of delay is permissible to file objections under Section 30 of the Arbitration Act by resorting to Section 5 of the Limitation Act. Section 5 of the Limitation Act, 1963 provides that any application, other than those contemplated under Order XXI CPC could be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. It is clear that Section 5 of the Limitation Act is applicable to all applications other than those under Order XXI C.P.C. Hence scheme of an enactment cannot be availed of to defeat such a right conferred under the statute of limitation in clear terms. In the instant case, it is set out in the course of the order made by the Civil Judge that the award was filed in the sealed cover and presented to the court and unless the same was made available to the parties, they could not file the objections. The object of filing the objections is to question the validity of the award on the grounds mentioned in Section 30 of the Arbitration Act. If such a course is not possible for want of copy in respect of award, certainly the circumstances, as arising in the present case, should be taken note of. The objections filed on 18.8.1990 are in the nature of an application under Section 30 of the Arbitration Act to set aside the award and is an application under Article 119 of the Schedule to the Limitation Act. Therefore, Section 5 necessarily would get attracted to such a situation. In this case, the notice of filing of award was served upon the appellant on 13.7.1990 and the appellant filed objections on 18.8.1990 and those objections have been shut out from the consideration on the ground that the same have been filed beyond the period of limitation prescribed under the relevant provisions of the Limitation Act. On the totality of the circumstances, we are satisfied that there was a sufficient cause for delay in making the application and the time should be extended till 18.8.1990 when the application was made. We condone the delay in f iling such objections upto that date. case in neither There is a clear lapse on the part of the Advocate appearing in the making a proper application for enlargement of time in the civil court nor pursuing this aspect of the matter in the High Court. In this Court too even, at the time of arguments, no application was forthcoming. However, to meet the ends of justice, we have adopted this course, but this indulgence shown by this Court cannot be taken advantage of by the appellant without paying appropriate costs to the respondent which we quantify to be a sum of Rs.40,000/- which shall be paid before the new arbitrator commences the arbitration proceedings. This cost shall not be the costs in the cause and are payable by way of penalty.

So far as the main matter is concerned, there is no difference between the award passed in Title [Arbitration] Suit No.37/86 and the proceedings in Title [Arbitration] Suit No.40/86 and the same also deserves to be set aside for the very reasons stated earlier and shall be governed by the same terms as to remittal of the award for fresh consideration by a new arbitrator.

As suggested by the learned counsel on both sides, we name Shri Justice Uday Sinha, former Judge, High Court of Patna, as the new arbitrator who is at liberty to fix his terms as he deems fit and proper to adjudicate the matter in dispute. The new arbitrator shall consider the pleadings and evidence on record already placed by the parties and shall not permit either of the party to raise further or fresh pleas or evidence. It would be appropriate for the arbitrator to make an award within a period of four months from the date of the receipt of this judgment and submit the same to this Court after publishing the same to the parties.

The Registry of this Court is directed to transmit a copy of this judgment to Shri Justice Uday Sinha, former Judge, High Court of Patna, 308, Patliputra Colony, Patna-13 forthwith. The parties are directed to appear before Shri Justice Uday Sinha for further directions, as may be deemed fit by him, within one week from the date of this judgment.

In the result, the appeals are disposed of accordingly. In the circumstances of this case, the appellant is directed to pay a sum of Rs.40,000/- [Rupees forty thousand only] to the respondent as costs.

[ S. RAJENDRA BABU ]

S.N. PHUKAN]

FEBRUARY 21, 2001.