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Judgment
Arindam Sinha, J
Mr. Sahu, learned advocate appears on behalf of appellants and submits, impugned order dated 17th May, 2014 made by the Court below rejecting his clients’ challenge against award dated 8th August, 2012. It requires interference in appeal. He submits, his first point is that there was breach of agreed procedure. Parties had agreed, inter alia, after his clients (respondents) filed counter/written statement, respondent (claimant) would have opportunity to file rejoinder to the counter and the counter claim, if any. This agreed procedure was recorded by the tribunal on order dated 9th May, 2008. In breach of this procedure, claimant was allowed to file additional rejoinder disclosing disputed documents.
He draws attention to paragraph 17 in the award to demonstrate that additional rejoinder was accepted from claimant. From paragraph 20 he points out that the documents disclosed in the additional rejoinder were marked exhibits C-20, 22, 25 to 28, 33 to 39, 41 to 44 and 47 to 51. Claimant had claimed these documents to have been dispatched under certificate of posting. His client never received those documents. In the circumstances, reliance on those documents, for purpose of making the award, was in violation of provisions in sections 19 and 28 in Arbitration and Conciliation Act, 1996.
Claimant had, in compliance with requirement under the contract, furnished bank guarantee. His clients duly invoked the bank guarantee. The tribunal travelled beyond scope of the contract to rule on the invocation and consequently award claimant in respect thereof.
The tribunal also travelled beyond four corners of the contract in awarding Rs.25,000/- as transportation cost for every school site, there being 90 such sites. This could not be done since clause 4 in Additional Special Conditions (exhibit R-10) specifically included transportation in scope of the work. He submits, by reason of the above the award was liable to have been set aside in the challenge. The Court below erred in not appreciating the challenge.
Mr. Sahu, will be heard to conclude on adjourned date and thereafter Mr. Kanungo, learned senior advocate appearing on behalf of respondent/claimant will be called upon to argue.
By consent list on 19th April, 2022.
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