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Judgment
S. Rajeswaran, J.—O.P. No. 57/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 205/CN/96 dated 18.7.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P. No. 58/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 203/CN/96 dated 18.7.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P.No. 59/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 204/CN/96 dated 18.7.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P.No. 60/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 202/CN/96 dated 18.7.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P.No. 61/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 284/CN/96 dated 17.9.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P.No. 62/2001 is filed to set aside the award dated 29.8.2000 in respect of contract No. 285/CN/96 dated 17.9.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
O.P.No. 959/2000 has been filed u/s 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called "the Act") to set aside the award dated 29.8.2000 in respect of contract No. 270/CN/96 dated 9.9.1996, consequently to modify the same or to set aside the entire arbitration proceedings and appoint a single arbitrator of an independent person to decide the matter as fresh.
In all the above O.Ps., a contract was awarded to the petitioner for collection and staking of hard stone ballast in Reach-I, from Km 60 to Km 74, Reach-II, from Km 74 to Km 85, Reach-III, from Km 85 to Km 99, Reach-IV from Km 99 to Km 115, Reach-VI, from Km 124 to Km 136, Reach VII, from 136 to 151 and Reach-VIII, from Km 151 to 162 in Madras Beach to Trichirapallai Gauge Conversion Project by Southern Railway Construction Organisation. Seven separate agreements were entered into on various dates for the above said works. Dispute arose between the parties and all the contracts were terminated by the railway-department and they were referred to arbitration. The arbitral tribunal consisting of respondents 2 to 4 seized of the seven disputes and passed seven separate awards. Aggrieved by the seven awards the petitioner who was a claimant before the arbitral tribunal filed the above Original Petitions u/s 34 of the Act, 1996. As the parties are one and the same, the dispute involved, the facts and the issues arose are one and the same, a common order is being passed. For the sake convenience, the facts are referred to as in O.P.Nos. 959/2000.
The petitioner is the successful bidder for supply of ballast of 50 mm machine crushed and hand broken ballast to the railways Reach-I mentioned above is the subject matter in the above petition (O.P.No. 959/2000). In Reach-I, the petitioner has to collect and stack 28 cu.m. of 50 mm size machine crushed hard stone ballast for Rs. 3,749/- per cu.m. The total value of the contract is Rs. 1,05,72,180. Due to unforeseen circumstances as well as delay on the part of the railways the petitioner could not proceed with the work expeditiously. Therefore joint meeting was held on 3.9.1997 and a revised programme was submitted by the petitioner to complete the work. But the 1st respondent-department arbitrarily terminated the contract by invoking Clause 62 of the General Conditions of the Contract (GCC). In view of the arbitrary termination of the contract, the petitioner suffered heavy loss and the dispute was referred to arbitral tribunal consisting of serving officers of the first respondent-department. By award dated 29.8.2000 a sum of Rs. 9,44,710/- was awarded by the tribunal as against a sum of Rs. 97,01,787/- claimed by the petitioner herein.
Aggrieved by the award the petitioner has filed the above O.P. u/s 34 of the Act, 1996.
Heard the learned Counsel for the petitioner as well as the learned Counsel for the respondents. I have also gone through the documents filed by them in support of their submissions.
Learned Counsel for the petitioner submitted that the work could not be completed in time due to the default committed by the 1st respondent-department, i.e., 1) earth work was not completed, 2) land acquisition was not done and 3) obstructions/objections from the villagers were not looked into. In such circumstances according to the learned Counsel, the 1st respondent-department should have extended time of completion of contract instead of terminating the contract.
Per contra, learned Counsel for the 1st respondent/department while reiterating the averments made in the counter affidavit submitted that under the guise of invoking Section 34 of the Act, 1996, the petitioner is attempting to argue the matter as if the court was an appellate court. The learned Counsel further submitted that 1st respondent-department did not terminate the agreement in the original currency period itself and only after extending reasonable and adequate extension of time for improving the progress, termination was resorted to in compliance with the clauses contained in the contract. Even though the learned Counsel for the 1st respondent-department attempted to assail the award for granting some of the claims to the petitioner. I do not consider the same as the 1st respondent-department has not filed any petition challenging the award. Insofar as the 1st respondent-department is concerned, the award is final and they cannot pick any pin-holes in the award in the petition filed by the petitioner.
I have considered the rival submissions carefully.
The arbitral tribunal before considering each claims in detail, considered the question of non-fulfilment of contractual obligations as alleged by both parties. The arbitral tribunal visited the site to have a personal knowledge before passing the award. The tribunal rendered a finding that availability of adequate railway land is the essence of the contract and found that this obligation has only partly been fulfilled by the 1st respondent-department. Similarly the arbitral tribunal rejected the contention of the petitioner that he had been waiting for the formation to be ready to stack ballast on formation as contracts were awarded for earthwork and ballast as parallel activity and not sequential. These findings of the tribunal are based on site inspection and the documents submitted before them and this Court cannot interfere with the same u/s 34 of the Act. The arbitral tribunal further held that the petitioner/claimant could not convincingly prove as to why he could not collect a sizeable ballast in the available land duly making use of the facilities such as road approaches, level crossings, yard space, etc. Thus the arbitral tribunal has come to the conclusion that the performance of the petitioner was not at all commensurate with the liberal advances and time extensions granted by the 1st respondent-railway and the petitioner's contention that non-availability of railway land is a principal reason for non-performance of the contract is therefore not fully correct. The arbitral tribunal found fault with both the petitioner and the 1st respondent-department for not fulfilling the respective basic obligations and therefore the arbitral tribunal held that the responsibility for termination of the contract is to be shared between these two. These findings and conclusions reached and arrived at by the arbitral tribunal are based on evidence and personal site inspection and therefore the same cannot be easily interfered with u/s 34 of the Act, 1996.
Insofar as the question of risk and cost action is concerned, which is the second major dispute, the tribunal found that risk action due to procedural deviations cannot be simply set aside as the 1st respondent-department had actually incurred extra expenditure by risk action. This finding is also based on evidence and reasons were also given by the tribunal for arriving at this decision and therefore it also falls beyond the interfering zone of this Court u/s 34 of the Act, 1996.
Thereafter the tribunal considered the claims individually and wherever there is justification for awarding certain sums towards claims the tribunal awarded the amount and rejected the claim where the tribunal found it was not justified. Clear reasons have been given by the tribunal for allowing certain claims partly and rejecting certain claims fully. Thus the award is a reasoned one giving reasons for passing such an award.
This Court has its own limitations while interfering with an award and this Court cannot interfere with an award by re-appreciating the evidence to come to a different conclusion even if it is possible. The petitioner is not able to bring any one of the clauses mentioned u/s 34 of the Act, 1996 so as to interfere with the award. In such circumstances. I do not find any infirmity or illegality in the award warranting interference by this Court u/s 34 of the Act, 1996.
Consequently, O.P.No. 959/2000 is dismissed. No costs.
In view of the dismissal of O.P.No. 959/2000, all the other O.Ps. are also dismissed since as the facts and the issues involved and the grounds of challenge are one and the same. In fact both the learned Counsel appearing for either side argued O.P.No. 959/2000 only and agreed that any order that would be passed in O.P.No. 959/2000 may be passed in other petitions also.
In the result, all the above O.Ps. are dismissed. No costs.
At the time of pronouncement of the order, it is represented by the learned Counsel for the petitioner that the sum awarded by the Tribunal has not been paid to him. If that be so, the said amount may be arranged to be given to the petitioner at the earliest on production of this order, with accrued interest thereon within a period of one months from the date of receipt of copy of this order.