Yelisetti Sitayya and others vs Superintending Engineer, PWD, R and B Circle, Kakinada and others

This appeal is filed against the order passed by the learned Subordinate Judge, Tadepalligudem, dated 30-9-1986 in OP No.3 of 1984.

Brief facts : For the purpose of improving the Koderu-Nallajarla Road (Narsapur-Aswaraopet Road) from KM. 22.00 to 59.50 (sub-work from K.M. 42 to 47), there was an agreement entered into in between the 1st appellant, who is a contractor, and the respondents-authorities, as per Agreement No.65/73-74. The estimated value of the work is Rs.20 lakhs and odd. The site was handed over to the petitioner on 13-3-1974. As per the agreement, the work should be completed by 12-3-1975. But, the 1st appellant-contractor could not complete the work within the said period. Therefore, the contract was terminated by the respondent-authorities on 22-2-1975. Thereafter, the contractor raised a dispute, which was referred to an arbitrator (i.e., 5th respondent herein). The arbitrator entered into reference, heard the parties and passed an award on 17-4-1978 rejecting the claims made by the contractor and thereby dismissing his petition. Aggrieved by the said award passed by the arbitrator, the LRs. of the contractor, as he died in the meanwhile, filed the OP in the civil Court. The very same contentions which were raised before the arbitrator, have been raised in the civil Court also. The learned Subordinate Juge in a well considered order, rejected all those contentions and dismissed the OP. Hence, the present appeal.

It is submitted by the learned Counsel for the appellant that the contractor was not able to keep the materials at the work spot as there was a prohibition to ply vehicles on the road, which leads to the work spot and that on one occasion, the Road Transport authorities had even stopped one of his vehicles when it was plying on such prohibited road and suspended the driving licence of the driver of the said vehicle. It is contended that the contractor was not aware about the said prohibition at the time of entering into the contract. Thereupon, he applied for permission to ply on the said road, but in the meanwhile, the contract was terminated arbitrarily by the official respondents. It is contended that the respondent-authorities were having knowledge about the prohibition to ply vehicles on the said road and they ought to have disclosed the said factum to the contractor before entering into the agreement with the contractor. It is further contended that even after the commencement of the contract period also, there was no co-operation from the departmental authorities when he applied for permission to ply on the said road and on the contrary, arbitrarily terminated the contract inspite of the fact that the contract work could not be performed by him only due to the impossibility. It is contended that the root cause for the termination of the contract is the attitude of the respondents and their non co-operation with the contractor during the subsistence of the contract pereiod and, therefore, the contractor cannot be held responsible for the same. According to the appellant, even though a contention was raised to the above effect before the arbitrator, the arbitrator without answering the said contention rejected the claim of the contractor and this conduct on the part of the arbitrator amounts to ''misconduct''. Without taking recourse to the settled legal position, I would first like to answer the contention of the contractor on the basis of the facts and circumstances of the case. It is not in dispute that there was a prohibition to ply the lorries on the road in question but the contractor said that he was not aware of the said prohibition until he had actually started the work under the contract. But, it cannot be pleaded as an excuse for the non-performance of the contract. When such a prohibition was there even prior to the commencement of the contract, it is for the contractor to make himself equipped with all the necessary information with regard to all the required infrastructural facilities which are required for the execution of the work, before entering into the contract. For the fault on the part of the contractor, the department cannot be blamed. Therefore, the very contention raised on behalf of the contractor is baseless. Be that as it may. Now, it is contended that even though such a contention is raised by the contractor before the arbitrator, the arbitrator rejected the claim of the petitioner even without answering such a contention. It is no doubt true that the arbitrator has not given cogent reasons in support of his conclusion that the claim is baseless. But, it is well settled principle of law that the arbitrator need not give reasons in support of his conclusion. Of course, if the conclusion of the arbitrator is not supported by any evidence, then such an award can be set aside by the Court, (see State of Orissa and Others Vs. Lall Brothers, and" Gujarat Water Supply and Sewerage Board Vs. Unique Erectors (Gujarat) (P) Ltd. and Another, . In the instant case, the arbitrator has passed the award upon due examination of the statements filed by both the parties and upon inspection of the work spot. Thus, the conclusion arrived at by the arbitrator is based upon the evidence that is placed on record. It is not the case of the appellant that the award suffers from any incurable error. In these circumstances, it cannot be said that the award, though is not non-speaking one, I am of the view that, the conclusion reached by the arbitrator is unassailable in view of the facts and circumstances of the case. The learned Counsel contended that the arbitrator has misconducted himself while passing the award. It is a mere baseless allegation. An arbitrator is said to have committed misconduct if the award passed by him goes beyond the reference or if there is error apparant on the face of the award; or if the award influenced by extraneous circumstances; or if the decision is taken by the arbitrator ignoring the material documents on record or the award is based on no evidence. In the case on hand, it cannot be said that the award passed by the arbitrator suffers from any one of the above mentioned infirmities. Therefore, the contention of the learned Counsel on this aspect is liable to be rejected. Learned Counsel contended that even according to the award passed earlier in the same matter by one Sri T. Sreenivasa Mudali, the sole arbitrator, who passed award on 30-4-1976, the respondents are due a sum of Rs. 1000/- to the contractor but the arbitrator in this case failed to award that amount of Rs. 1000/- in favour of the contractor and that this amounts to misconduct. But, when once the contract is terminated even before the completion of the contract period for any default on the part of any of the parties, the other party is entitled to forfeit the amounts which are pending payment, as per Clause 60 of the PS to A.P. DSS, Therefore, this contention of the learned Counsel is also liable to be rejected. For all these reasons, I am of the view that the CMA is without merit.

In the result, the CMA is dismissed. No, Costs.