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Judgment
P.K. Misra, J.—This Review Application has been filed for reviewing the Division Bench decision dated 29.7.2005 in O.S.A.No.8 of 2000.
The Chief Engineer (Highways) had been appointed as Arbitrator pursuant to the order dated 19.8.1983, passed by a learned single Judge of
this Court in C.S.No.765 of 1980. Subsequently, a Division Bench of this Court appointed a retired Judge of the High Court as arbitrator to
resolve the dispute by order dated 27.11.1986. The present applicant filed claim petition claiming various amounts under different heads as
indicated hereunder :-
Claim No. 1 : Compensation for loss suffered on account of overheads and profits due to breach of contract including termination - Rs. 226.351
lakhs.
Claim No. 2 : Compensation for loss due to Cyclone - Rs. 29,92,166.08
Claim No. 3 : Compensation for taking over the infrastructure and materials at site - Rs. 76,36,090/- corrected later to Rs. 89,23,722.45
Claim No. 4 : Compensation for loss on account of idle labour machinery equipment - Rs. 82,12,000/-
Claim No. 5 : Settlement of final bills - Rs. 22,98,976/-
Claim No. 6 : Payment of design fee Rs. 15,83,784/-
Claim No. 7 : Interest
Claim No. 8 : Cost .
The arbitrator by award dated 16.12.1988, rejected Claim No. 4 and passed award in respect of Claim Nos. 1, 2, 3, 5 & 6. On the side of the
Government, O.P.No.275 of 1989 was filed to set aside the award. By order dated 14.6.1994, the learned single Judge confirmed the award in
respect of Claim Nos. 2 and 5 and set aside the award relating to Claim Nos. 1, 3 and 6 and remitted the matter to the arbitrator for fresh
disposal. The arbitrator had passed a fresh award in respect of Claim Nos. 1, 3 and 6 and awarded a sum of Rs. 2,26,35,000/- under Claim No.
1, and a sum of Rs. 78,94,682/- under Claim No. 3. Such award was again challenged by the Government. Learned single Judge while confirming
the award in respect of Claim Nos. 1, 3 and 6, reduced the rate of interest payable. O.S.A.Nos.7 and 8 of 2000 were filed by the Government
against such decision of the learned single Judge. Cross Objection was filed by the Contractor, the present applicant, claiming that reduction of rate
of interest from 16.5% to 12% was illegal.
The Division Bench while confirming the award of the arbitrator and the decision of the single Judge in respect of Claim Nos. 1(i) and (ii),
reversed the order of the learned single Judge in respect of Claim No. 1(iii). It was observed by the Division Bench that since the contractor was
being paid the value of the machinery on the basis of valuation as on the date of the illegal seizure, he would not be entitled to any damages as
claimed under Claim No. 1(iii). The relevant conclusion is as follows :-
In our opinion, the claim made by the contractor on this head and granted by the arbitrator can aptly be described as ingenious. There is no
dispute that the machinery had been taken over by the Department. There is also no dispute that the contractor has never asked for return of the
machinery. On the other hand, if the contractor claims the value of the machinery as on the date of the seizure, it would be obvious that the title to
the machinery would vest with the Government. It is to be emphasised once again that the contractor has claimed the value of the machinery as on
the date of inspection by the expert, which was soon after the seizure. In our opinion, since the contractor has claimed value of the machinery from
the date of seizure, it must be taken that the machinery vested with the Government. It is of course true that the Government was liable to pay the
amount immediately, but such amount was ascertained and awarded at a later date. However, it was always open to the contractor to claim
interest on the said value, if he has not done so. It may be his misfortune, but having claimed the value of the machinery on the date of seizure, he
cannot be heard to say that even thereafter he would be entitled to a further sum.
In this connection, it is also to be remembered that it is not the case of the contractor that he had other works to be performed and because of
the non-return of the machinery or non-payment, he could not undertake other work. In our opinion, the claim on Sub-head (iii) is too remote and
since the contractor is entitled to the value of the machinery, he is not entitled to the amount claimed under sub-head (iii) of Claim No. 1. To this
extent, the award of the arbitrator suffers from an error apparent on the face of the award, which is required to be set aside.
It is also to be noticed that the claim made under Claim No. 1, which was being challenged by the Government on the ground that the
depreciated value should have been found out and not the market value on the date of seizure of the machinery was negatived, and the award was
upheld.
In this Review Application, the applicant is not challenging the legality of the decision so far as it relates to Claim No. 1(iii). The only contention
of the applicant is to the effect that even though the applicant may not be entitled to compensation as claimed under Claim No. 1(iii), the applicant
should have been awarded interest on the value of the machinery by way of damages/compensation as the applicant was entitled to such money
immediately on the date of seizure and, therefore, interest should have been directed to be paid from the date of seizure till the matter was referred
to the arbitrator. In other words, the applicant is not claiming pendente lite or post-award interest, but interest prior to the date of reference on the
ground that he has been illegally deprived of the use of the machinery and the interest payable on the value of the machinery.
It is not in dispute that while making Claim No. 3 before the arbitrator, the contractor had claimed value of the machinery to be determined on
or about the date of illegal seizure of the machinery. However, he had not claimed any interest on that head. If he would have claimed interest on
the amount payable towards the value of the machinery, it would have been a matter for the arbitrator to decide. Only because the claim of the
contractor has been found untenable in respect of Claim No. 1(iii), the applicant is now making a new head of claim for the first time in this Review
application by contending that he should be paid interest on the valuation of the machinery.
As rightly pointed out by the learned Additional Advocate General for the respondent, such a claim, which is being advanced for the first time in
this Review Application, cannot be countenanced. The applicant had claimed certain amount under Claim No. 1(iii), which has been rejected by
the Division Bench. That part of the decision is not sought to be reviewed. However, a claim is now being advanced which had never been raised
earlier. We do not think, in a Review Application, such a contention, which was not raised before the Arbitrator nor before the single Judge and
before the Division Bench at the time of hearing of O.S.A.Nos.7 & 8 of 2000, can be permitted to be raised for the first time in the Review
Application.
Law is well settled that in the garb of Review, a litigant can neither seek for rehearing the appeal nor can ask that the Court deciding the Review
should sit as an appellate authority over the earlier decision.
Keeping in view the limited scope for interference in such matters, we do not find any merit in this Review Application, which is accordingly
dismissed.