State of West Bengal vs L.M. Das

Masud, J.—This application has been made on behalf of the State of West Bengal for setting aside an award in favour of the contractor. Disputes and differences arose between the parties out of a contract for excavation of main channel from Krishnapur to Kulti Reach F.G. in connection with Bagjola-Chuni-Jatragachi Drainage Scheme. Under Clause 25 of the contract the said disputes were referred to the sole arbitration of Sri H. N. Brahma, Superintending Engineer, Western Circle, Irrigation and Waterways Directorate, Government of West Bengal, who was duly appointed on July 15, 1963. After taking oral and documentary evidence of both the parties the arbitrator passed an award on December 24,1968, in favour of the contractor whereby a sum of Rs. 1,63,000 was to be paid by the Petitioner. The arbitrator filed the award on or about June 5, 1969, in this Court.

Mr. M. N. Banerjee on behalf of the contractor has raised the preliminary point that the application is barred by Article 119(b) of the Limitation Act, 1963. Mr. Chakraborty on behalf of the Petitioner has, however, contended that in the present case the Petitioner received the notice u/s 14(2) on or about July 14, 1969, and the present application has been made within 30 days from the said date. Relying upon several decisions he has asked me to reject the contention of the Respondent''s counsel.

As the Respondent has not stated any facts on the basis of which the said preliminary point was raised, supplementary affidavit has been filed on behalf of the Respondent showing that the Registrar, Original Side, High Court, Calcutta, wrote to the arbitrator on June 5, 1969, informing him that the award had been filed on that date. On June 13,1969, a copy of the said letter was sent to the Executive Engineer, Canals Division, Irrigation and Waterways Directorate, Government of West Bengal, and also to the contractor. The counsel for the Respondent has argued that the Petitioner and the Respondent duly received copies of the said letter on or about June 16, 1969. Thus, although the Petitioner received the said notice of filing the award the Petitioner chose to make this application on August 12, 1969. Mr. Chakraborty, as stated earlier, has submitted that the period of limitation would commence from July 14, 1969, when the formal notice was served on his client u/s 14(2) of the Act by the Registrar, Original Side, High Court, Calcutta. It may be stated here that the Petitioner has not filed any counter-affidavit in reply to the Respondent''s said supplementary affidavit. In course of the argument also Mr. Chakraborty has not contended that the said letter darted June 13,1969, was not received by his client at all. Ordinarily, it is expected that the Petitioner should file an affidavit in reply to the Respondent''s supplementary affidavit challenging the sufficiency or validity of the letter or notice dated June 13, 1969. Both the counsel proceeded on the basis that Article 119(b) of the Limitation Act, 1963, would apply in the present case. The said Article reads as follows:

19 a) for the filing in Court of an award. Thirty days The date of service of the notice of the making of the award

(b) for setting aside an award or getting an award limited for re-consideration Thirty days The date of service of the notice of the filing of the award.

It is the common case for both the parties that the period of limitation for filing the present application is 30 days ''from the date of service of the notice of the filing of the award''. Mr. Chakravorty has argued that the notice mentioned in Article 119(b) is the statutory notice u/s 14(2) of the Arbitration Act. The letter or notice dated June 13, 1969, is only a reply to the arbitrator''s letter and, as such, it cannot be deemed to be a notice u/s 14(2). The notice dated July 14, 1969, itself shows that this is the only notice which has been issued u/s 14(2) and, as such, the period of limitation would commence from the service of the said notice dated July 14, 1969. According to him rules have been framed by Original Side, High Court, Calcutta, u/s 44 of the Arbitration Act, 1940. The relevant rules of the Original Side, High Court, Calcutta, are set out in Appendix No. 14 at p. 900 which may be stated as follows:

The Arbitrator or umpire shall forward the Award, or a signed copy thereof (duly stamped) together with any depositions and documents which may have been proved before them or him when causing the same to be filed u/s 14(2) of the Act together with necessary court-fees for filing (and in case of awards in languages other than English Rs. 2 for every folio of ninety words as translation fees) under a sealed cover to the Registrar with a letter requesting that the award be filed.

When the provisions of the Act and of Rule 13 have been complied with the Registrar shall file the award and issue notice thereof to the parties u/s 14(2) of the Act intimating to them that; the Court will proceed to pronounce judgment thereon on a date to be fixed in the notice (Form No. 6). Such notice shall be served by and at the expense of such party or parties as the Registrar may direct.

Under Rule 13 the arbitrator shall forward the award or a signed copy thereof together with depositions and documents to the Registrar, Original Side, High Court, Calcutta, requesting him in writing that the award be filed. Under Rule 14 if the arbitrator forwards the said award with the records of the proceedings under Rule 13, it is the mandatory duty of the Registrar to file the said award and to issue notice thereof to the parties u/s 14(2) of the Arbitration Act intimating to them that the Court will proceed to pronounce judgment thereof on a date to be fixed in the notice. But the said Rule 14 of the Original Side specifically states, such notice u/s 14(2) shall be served by and at the expense of such party or parties as the Registrar may direct. This rule, therefore, shows that the notice u/s 14(2) of the Act is not served by the Court or by the Registrar without reference to the parties. Notice u/s 14(2) is served at, the instance of a party or parties at his or their expenses as the Registrar may direct. Now, when the arbitrator forwards the award under Rule 13 in accordance with Section 14(2) of the Act, the parties would not necessarily have knowledge of the same. The Registrar does not incur expenses for serving notice u/s 14(2) of the Act on his own. He will have to get the expenses from the interested party and, therefore, the Registrar will have to inform the parties that necessary steps for notice u/s 14(2) would have to be made. In my opinion, that is, the back-ground, why a notice earlier than the notice u/s 14(2) has got to be served on the parties, and this was done in the present case when the Registrar wrote to the parties on June 13, 1969. Thus, it cannot be said that the letter dated June 13, 1969, is a notice u/s 14(2) of the Act, as argued by the counsel for the Respondents, nor can it be urged that such notice is unauthorised and not sanctioned by law as contended by the counsel for the Petitioner. The notices u/s 14(2) shall be made returnable before the Court and are to be served not less than 8 clear days before the returnable date in the manner set out in Rule 15 in chap. VIII of the rules. Thus the rules having been duly framed u/s 44 of the Arbitration Act and they not having been challenged provide for the following preliminary steps are to be followed:

(a) The arbitrator shall forward the award or a signed copy thereof duly stamped together with the depositions and documents, proved before him for filing the same u/s 14(2) of the Act together with necessary court-fees.

(b) While forwarding the said award with the records of the arbitration proceeding the arbitrator shall write a letter to the Registrar, Original Side, requesting the award to be filed.

(c) After the arbitrator forwards the said award with the records of the arbitration proceeding and writes the said letter requesting the Registrar to file the award, the Registrar shall do the same.

(d) The Registrar shall ask the parties for providing him with necessary expenses for issuing the formal notice u/s 14(2) of the Act. For the said purpose the Registrar may if he has not been offered such expenses by any party inform the parties that the award has been filed in the Court.

The said statutory obligations have got to be complied with by the arbitrator, the Registrar or the parties. But those obligations are not necessarily relevant for the purpose of construing the words, ''the date of service of the notice of the filing of the award'' I within the meaning of Article 119(b) of the Limitation Act. Mr. Chakra-borty has argued that under different Article of the Limitation Act the period of limitation might commence from the date of knowledge or from the date of service of notice. Unlike, for instance, Article 123 of the Limitation Act, 1963, Article 119 does not use the words, the date of ''knowledge'' and, accordingly, the period of thirty days cannot commence from the date of knowledge. Knowledge of a party may be derived from a summons or a notice served on him. There may be also cases where he may have knowledge from other sources. In the present case, the Petitioner came to know of the filing of the award from a letter from the Registrar of this Court. I cannot accept Mr. Chakravorty''s arguments that the notice under Article 119(b) must be a formal notice u/s 14(2) of the Arbitration Act. The said notice may be an oral or informal written notice or a formal notice u/s 14(2). As soon as the parties are intimated orally or in writing that the award has been filed, the parties should take steps in inspecting the said award and in making the necessary application for setting aside such award if they are so advised. But, he cannot be allowed to make up his mind indefinitely and, as such. Article 119 fixes a period of 30 days within which the necessary application for setting aside the award has to be made. Reliance may be placed on Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, where the Supreme Court has stated:

The notice can be given orally. No question of the service of the notice in the formal way by delivering the same or tendering it to the party can arise, in case of notice given orally. The communication of the information that an award has been filed is sufficient compliance with the requirements of Sub-section 2 of Section 14 with respect to the giving of the notice to the parties concerned about the filing of the award.

A distinction is sought to be made by Mr. Chakraborty that the Supreme Court case dealt with a case of an arbitration in a suit and where an award has been filed in the open Court. He has relied upon E.C. Corporation Ltd. v. Madras Part Trust ALR. 1968 Mad. 835. But it appears to me that, apart from the question that the facts are distinguishable, there is no logic in not applying the reasoning of the Supreme Court decision to arbitration matters outside the Court. A party makes an application for setting aside an award when he is aggrieved of the contents of the award. If the said aggrieved party has been intimated of the filing of the award the period of limitation ought to start from the date of the receipt of such communication. In the present case, as stated earlier, the Petitioner did not file any counter-affidavit to the supplementary affidavit filed by the Respondent and have not denied that they had received the letter dated June 13, 1969 (vide annex. A to the said supplementary affidavit of the Respondent). Mr. Chakraborty has made an attempt in the course of his argument to say that the said communication was made to the Executive Engineer and not to the party, the State of West Bengal. He has also stated that the Executive Engineer was not the authorised agent to receive such communication on behalf of the State of West Bengal. This point also has not been raised by the State of West Bengal in any supplementary affidavit. It may, however, be stated here that the petition has been affirmed by Sri Bijon Krishna Majumdar, Executive Engineer, Canal Division, Irrigation and Waterways Directorate, Government of West Bengal, and that the formal notice u/s 14(2) of the Arbitration Act was served on a clerk of the office of the Executive Engineer, Canal Division. It also appears that the letter dated June 13, 1969, has also been served on the Executive Engineer, Canal Division. Reliance has also been placed by Mr. Chakraborty on Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., but this case has been over-ruled by a Bench decision of this Court, Chaturbhuj Sohanlal Vs. Clive Mills Co. Ltd., . But, it is not necessary for me to discuss those cases inasmuch as the Petitioner has admitted the service of the earlier letter of the Registrar dated June 13, 1969. Further, the question of limitation was not discussed in those cases nor was the legal effect of a notice earlier than a notice u/s 14(2) construed.

Admittedly, in the present case the letter dated June 13, 1969, written by the Registrar, Original Side, High Court, Calcutta, has been received by the Petitioner. By the said letter the Respondent was informed that the arbitrator had filed the award in this Court. The counsel for the Respondent has argued that the letter must have been received in due course within a week or two from June 13, 1969. The counsel for the Petitioner has not challenged the same. Thus, even assuming that the letter had been received by the Petitioner within a fortnight, the application should have been made within 30 days of the date of receipt of the letter or, in other words, within July 1969. But, as the Petitioner has made the present application on August 12, 1969, the application is clearly barred by limitation and, as such, this application should be dismissed on this ground.

Reference may also be made to an unreported judgment of A. K. Mukherjea J. in Jamunalal Junakilal v. Budge Budge Jute Mills Ltd. Unreported judgment of A. K. Mukherjea, J. dated February 11, 1965 (Award No. 263 of 1962) where the learned Judge has come to the same conclusion by a similar process of reasoning.

It is not really necessary for me to discuss other points of law argued by Mr. Chakraborty. But in any event, as the points have been argued, I would now deal with the same. Before I do so, I express my strong disapproval of the conduct of the parties in connection with the present proceedings. Neither the agreement nor the award nor even the native u/s 14(2) has been annexed either to the petition or to the affidavits. The plea of limitation was not raised or even touched in the affidavit filed by the Respondent. Even after supplementary affidavit has been directed to be filed on the question of limitation a copy of the notice u/s 14(2) has not been filed. The State of West Bengal did not choose even to reply to the supplementary affidavit filed by the Respondent. The practice of arguing a case without filing the necessary documents or without even mentioning the grounds in the petition or affidavits is extremely unhelpful and inconvenient to the Court. In following such practice the Solicitors are not doing their duty for their clients.

Mr. Chakraborty has next argued that there is an error on the face of the award inasmuch as the arbitrator has awarded damages amounting to Rs. 1,63,000 at a rate other than the stipulated rate. According to him, there was no justification for the arbitrator to assess the damage on an arbitrary basis. The award makes it clear that although the stipulated rate of earth-work in excavation of channel in all kinds of soil is Rs. 25 per 1,000 ft. yet the arbitrator has taken into consideration C.P.W.D. schedules of rates, 1955, for Calcutta & Greater Calcutta which is Rs. 73 per 1000 ft. Even assuming that there are unforeseen circumstances which caused additional expenditure to the contractor the arbitrator is not justified in law in granting a rate which is not the rate mentioned in the agreement itself. Reliance has been placed by him on Alopi Parshad and Sons Ltd. Vs. Union of India (UOI), . In my view, this contention cannot be accepted. The reasons why I say so are as follows:

Under Clause 12 of the agreement the Engineer-in-charge has power to make any alteration in the original specification drawings, designs and instructions that may appear to him necessary during the progress of the work and the contractor is bound to carry out the said work in accordance with any such instructions which may be given to him in writing signed by the Engineer-in-charge, and under the said clause if the altered work includes a class of work for which no rate is specified in the contract then such class of work shall be carried out at the rates entered in the schedule of rates of the 24-Parganas district which was in force at the time of the acceptance of the contract minus plus the percentage which the total tendered amount bears to the estimated cost of the entire work put to tender. If, however, the altered or additional work is not entered in the said schedule of rates then the contractor shall within seven days of the date of his receipt of the order to carry out the work inform the Engineer-in-charge of the rate which it is his intention to charge for such class of work. If the Engineer-in-charge does not agree to the rate given by the contractor he shall by notice in writing be at liberty to cancel his order to carry out such class of work and get the work done in any manner as he thinks best provided that if the contractor has already commenced the work or incurred any expenditure under the new instructions, then in such a case he shall be entitled to be paid according to such rate as shall be fixed by the Engineer-in-charge. In the event of a dispute, in respect of the rate fixed by the Engineer-in-charge the decision of the-Superintending Engineer of the Circle shall be final.

In the present case, it appears from the award that the work was agreed to be done in 5 months from May 9, 1955. But the work order was issued by the S.D.O., Bagjola, Drainage Subdivision, in which it was ordered that the work should be done from May 10, 1955 to June 30, 1955, and from October 30, 1955 to February 28, 1956, and, a copy of the same was sent to the Executive Engineer for approval. No objection was raised by the Executive Engineer for splitting up the said work as stated above. I am told that the said S.D.O. directed the splitting up of the work on the ground that the rainy season would start. It is nobody''s case that the contractor has completed the work beyond the stipulated period and, as such, committed breach of contract. In the premises the arbitrator has rightly stated in the award that there was automatic extension of time. Now, although to avoid the rainy season the new instruction was issued and the work was split up a new situation arose on account of the monsoon. There was heavy storage of rain water in the soil, and as a result of heavy percolation of water in the soil, large expenses had to be incurred for pumping out the water from the soil. For these increased costs of expenditure no rate was fixed, and naturally under Clause 12 the arbitrator considered the rate of C.P.W.D. for Calcutta and greater Calcutta. Clause 12 of the agreement provides for application of the rate entered in the schedules of rates of the 24-Parganas district as stated above. The greater Calcutta is mostly situated within the district of 24-Parganas and, as such, the arbitrator has not applied any rate other than the rate mentioned in the contract. It is not, therefore, correct to say that the arbitrator has calculated damages at a rate other than the stipulated rate. No specific issue has been raised as to which rate would be applicable in such a case. In any event the award does not specifically state the exact rate on the basis of which the said sum of Rs. 1,63,000 has been assessed. It is not for me to speculate the rate accepted by the arbitrator when the arbitrator has not mentioned the same. From the recital, however, it is quite possible that he must have calculated on the basis of a rate other than the rate of Rs. 25 per 1000 ft. It is quite possible that he might have accepted a rate between Rs. 25 per 1000 ft., and Rs. 73 per 1000 eft. In the circumstances the observations made by the Supreme Court in Alopi Parshad and Sons Ltd. v. Union of India (Supra, p. 592) have no application. It may be added, however, that the Supreme Court have made the following observation in the said case: If, however, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of its being set aside, In Re King and Duveen 1913 (2) K.B. 32 and Government of Kelantan v. Duff Development Co. Ltd., 1923 A.C. 395.

In the present case I find that about 23 issues have been raised. It appears from issue No. 6 that a specific question was asked on this point. Issue No. 6 reads as follows:

Was the accumulation of rain water or percolation of water to be paid for separately as the same was not included in the earthwork as described in item 1 of the schedule of rates ?

There are other issues also which deal with percolation of water, accumulation of rain water and also dewatering work. Thus, even on the observation of the Supreme Court a specific issue has been raised and the arbitrator has made his award and now the Petitioner cannot be allowed to challenge the award on that ground. Further reference may be made to Chamsey Bhara and Co. v. Jivraj Ba-Uoo Spinning and Weaving Co. Ltd. (1923) L.R. 50 IndAp 324 (331) in support of the contention that an award is not invalid because by a process of inference and argument, it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion.

Mr. Chakraborty has next argued that the award at p. 15 states�

As regards the claim for extra cost for earth-work in wet soil and soil under water I am to say that I do not see why such claim is being made as such work is covered by the terms of contract.

Relying on the said observation it is argued that although the arbitrator has expressed his views that the contractor is not entitled to claim any rate other than stipulated rate, yet the arbitrator has not applied the stipulated rate at the time of calculating the damages. This, according to him, is another error in the face of the award. It is unfortunate that in the present case the arbitrator has assigned reasoning of his award in a language which is not always very happy. Some of the statements were unnecessary and have given rise to the contentions against the award. In my view the said statement at p. 15 is not the final decision of the arbitrator. The arbitrator in his recital of facts has made the said observations. The arbitrator, both before and after the said statement, has dealt with the major percolation of water and also the costs of pumping out the accumulated water due to heavy rains. He has also stated at p. 20 that the tender of Rs. 25 per 1,000 ft. included dewatering of minor percolation of water. But as there was heavy percolation the arbitrator had to consider a rate other than the tendered rate. According to him, the continuous heavy percolation of water has changed the character of the tender as already anticipated by the then Superintending Engineer, G.C.D.G., and the contractor is entitled to an extra rate for earth-work in such unforeseen circumstances. The basis of extra rate can be arrived at from the documents filed before me by the two parties.

Thus, it is clear that the arbitrator after examination of oral and documentary evidence has come to the conclusion that on account of unforeseen circumstances the contractor is entitled to an extra rate. Specific issues were raised and the arbitrator came to a finding of fact that a sum of Rs. 1,63,000 should be paid to the contractor by the State of West Bengal as damages. It may be added here that this alleged contradiction in the award itself has not been taken as a specific ground in the petition.

There is another ground why Mr. Chakraborty has argued that there is error on the face of the award. He has drawn my attention to the statement made by the arbitrator in the award at p. 10 which reads as follows:

The contractor started work on 9. 5. 55, but there were local opposition from the beginning, probably for land, and on 13. 5. 55 the Police used tear gas to disperse the mob and arrested some miscreants for creating disturbance in the work. This disturbance was therefore short-lived and normal conditions were restored very soon. The claims of the contractor on this score are therefore rejected.

Reference has been made by Mr. Chakraborty to p. 21 of the award where a sum of Rs. 74,860 has been claimed by the contractor on the grounds of extra for increase in the cost of E.W. due to failure of the Dept. to hand over site free from any hindrance. The arbitrator has awarded a sum of Rs. 5,000 against item No. 1 (d) under the said heading. It is true that the observations at p. 10 show that the arbitrator rejected the extra claim under this heading. Accordingly, Mr. Chakraborty has argued that there is no justification for the arbitrator to award a sum of Rs. 5,000 on the said account. As stated earlier the particular arbitrator has the peculiar habit of making long statements in support of his award which are really unnecessary for him to do. It appears that issues Nos. 3 and 5 specifically deal with the question of difficulties in getting sum dent strength of work on account of trouble of the site. It is quite possible that as the contractor claimed large sum of money on this account frivolously the arbitrator has made the said observations to the effect that the contractor''s claims under this heading are to be rejected. But at the same time it appears that in the same paragraph the arbitrator has stated that there were disturbances at the site from May 9 to 13, 1955, when the Police used tear gas to disperse the mob and arrested some persons for creating disturbances in the work. The arbitrator has added that this disturbance was short-lived and normal conditions were restored. Accordingly, the arbitrator has rejected the exaggerated claims of the contractor and awarded a small sum of Rs. 5,000. In this connection it may be added that the only ground which has been raised in this petition on the award of the said sum of Rs. 5,000 has been set out in Clause 12(c) which is entirely different from what has been argued before me. In the premises I hold that there is no substantial error on the face of the award which compels me to invalidate the same.

The next contention of Mr. Chakraborty is that the award should be set aside on account of the arbitrator''s lega1 misconduct. Firstly, according to him, the arbitrator has imported or introduced his personal technical knowledge on the soil structure in the site and expressed his opinion in the award on which the Petitioner had no chance to reply to. Reference has been made to different portions of the award at pp.7, 8 and 15. In my view, there is no substance in the said contention. The arbitrator has discussed the technical findings of the work executed by the contractor. In doing so he has relied upon the evidence adduced before him including the index plan, the chart in the S.D.O''s file and many other documents. Most of the issues involve technical knowledge on the nature and character of the structure of soil at the site and the effect of heavy rain on the soil and the sand in the layers in addition to heavy percolation of water. References may be made to issues Nos. 6, 7, 11, 12, 13, 17 and 20. The award has been made by Sri H. M. Brahma, the Superintending Engineer, Damodar Design and I.N.V. Circle ; two experienced engineers with technical knowledge on the matter have also given evidence: vide p. 5 of the award. It is for the Petitioner to show that there is no evidence on record on the basis of which the arbitrator could make the said observations. The Petitioner has failed to discharge the onus as laid down in Nana Kwaku Amoah v. Nana Sir Ofori Atta AIR 1933 P.C. 46. If the arbitrator would have imported his personal knowledge on the disputed matter over which there is no evidence before him there would have been some force in Mr. Chakraborty''s contention. In the present case, there is enough material on the basis of which the arbitrator would legitimately come to that; conclusion. Reliance may be placed on Bhican Chand Charoria v. G. and M. Fogt (1926) 44 C.L.J. 422; Union of India (UOI) Vs. N.P. Singh, and firm Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore, .

There are other points raised by Mr. Chakraborty to substantiate his client''s case of legal misconduct of the arbitrator. According to him the arbitrator has wrongly acted on wrong presumption of law and has also made his award on the basis of extraneous materials. He has also argued casually that the extra cost at work during rainy season due to the less outturn which the contractor claimed had been duly rejected by the Government and yet the arbitrator has awarded a sum of Rs. 5,000 under item 1(d) at p. 21 of the award. According to him, all these facts show that the arbitrator had a bias in this matter and, as such, the award should be set aside.

In my view, there is not much force in this ground. No particulars about the wrong presumption of law, extraneous materials or bias have been mentioned in the petition. In the course of his argument he has drawn my attention to the second paragraph of p. 10 of the award where the arbitrator has stated:

It, therefore, shows that there was an automatic extension of time upto 28.2.56 by the Deptt.

The arbitrator has come to the said conclusion on the basis of the evidence before him. Under the contract the contractor was to complete the work within 5 months from May 9, 1955. Under the orders of the S.D.O. the work was split up and the contractor was asked to do the work from May 10 to 30, 1955, and again from October 30, 1955 to February 28, 1956. Copy of the S.D.O''s order was sent to the Executive Engineer for approval. No objection was raised either by the S.D.O. or by the Executive Engineer on the splitting up or division of the work. Accordingly, the arbitrator has come to the conclusion that there is no question of any breach of the contract on account of the failure of the contractor to complete the work within the stipulated period. It is nobody''s case that the contractor is liable for damages for non-performance of the work within the stipulated time. On the contrary under Clause 12 the contractor was bound to obey the instruction of the S.D.O. or the Executive Engineer. The learned Counsel has failed to show me any extraneous materials or any kind of Mass either in the petition or in his argument which would have convinced me of the strength of his argument. Similarly, nothing has been shown to me by the counsel for the Petitioner that the claims under item No. 1(d) have been duly rejected by the department without any protest on the part of the contractor. I have been told that the final bill was paid on March 31, 1957, and the contractor only accepted claims under item No. 2 (p. 21 of the award) under protest. The final bill has not been shown to me, nor I have any chance to know what particular items were accepted by the contractor under protest and which other items have been accepted without protest. As I observed earlier, a copy of the final bill, a copy of the award, a copy of the agreement and the necessary particulars have not been set out in the petition. In any event, as stated above, issues were approved (vide p. 5 of the award) and issues Nos. 3, 4 and 5 have been allowed to be raised and evidence has been laid on those issues. The Petitioner having induced the arbitrator to answer those issues cannot now complain of allowing a small portion of the contractor''s claims on this account.

Mr. Sen, on behalf of the contractor, has argued that the contractor''s total claim amounted to Rs. 4,05,628 out of which only a sum of Rs. 1,63,000 has been awarded in favour of his client. The award does not show any particular rate on the basis of which the said compensation was awarded. Relying upon M/s. Alopi Parshad & Sons Ltd. v. Union of India (Supra), he has argued that the arbitrator might have made his award on the basis of quantum merit. But, as the said point was not raised at any stage by the parties or by the arbitrator in his lengthy award and for the reasons stated above I am not inclined to make any observation on the same.

In the premises, the application is dismissed but there will be no order as to costs.