JUDGMENT J.D. Kapoor, J.
1. Through this suit, award dated 15th December, 1996 is being sought made rule of the court. On being noticed, respondent has assailed the award by filing objections under Sections 30 and 33 of the Arbitration Act, 1940 by way of I.A. 6003/1996.
2. The main thrust of the objections is with regard to claim no.1 and claim no.5. Claim no.1 is for payment of items of furniture supplied and taken over by CPS Mhow. A contact was awarded by respondent to the petitoner for manufacture and supply of furniture amounting to Rs. 15,54,970/-. The date of completion of supply was 5.4.1987 but at the request of petitioner, the same was extended to 26.8.1987. Despite extension, the petitoner failed to make complete supplies and it is alleged that even the material supplied was not in accordance with specifications. Besides oral requests, notice was also sent to the petitoner for rectifying the defects and completing the balance supply but the petitoner failed to take any action for one year. this compelled the respondent to cancel the contract which they did on 10.9.1988. However, against balance work completed by the petitoner, the respondent preferred counter-claim of Rs. 2,55,600/- which was subsequently modified to Rs. 2,78,968/- but the Arbitrator awarded Rs. 15,000/- towards risk and cost.
3. As is apparent from the aforesaid facts, the findings of the Arbitrator in this regard are findings of facts based upon material and evidence produced by the parties. It is settled law that court does not sit in appeal and is therefore refrained from re-appreciating or re-evaluating the findings unless and until the Arbitrator commits such gross error by way of ignoring material which if taken not consideration would title or have significance effect on the award, the award should not be interfered with. I therefore do no find any ground for interference in respect of award on account of risk and cost.
4. Claim no.5 was towards release of security deposit of Rs. 23,630/- and refund of earnest money Rs. 16,250/-, However, earnest money was released by the respondent in February 1987 itself. Therefore, only surviving claim was towards release on security deposit. In this regard, learned counsel for the respondent has taken refuge of Clause 35 of the contract which is as under:-
Clause 35: REFUND OF SECURITY DEPOSIT:- The Security Deposit mentioned in Condition 15 above may be refunded to the Contractor after the expiration of the "maintenance period", vide Condition 20 by the G.E. provided always that the Contractor shall first have been paid the Final bill and have rendered a No-demand Certificate (I.A.F.A.-451).
5. It is contended by counsel for the respondent that final bill was never prepared nor had the petitoner given 'no demand certificate' and therefore award in this regard is bad on factual matrix and is also contrary to the term and conditions of the contract.
6. It is again settled that if the Arbitrator traverses beyond the terms of the agreement, his award is liable to be set aside because the Arbitrator is the instrument of the contract and is not over it. In this regard, learned Arbitrator has observed that since the disputes are being resolved through arbitration, the security deposit of Rs. 23,630/- is to be refunded by the department to the contractor. However, objection of the respondent in this regard is highly tenuous particularly in view of the findings returned by the Arbitrator with regard to counter-claim of the respondent and other claims of the petitoner. Security deposit is such a deposit which has to be refunded by the party concerned as and when their disputes are settled between them either by way of arbitration or otherwise. Unless there is finding that on account of faults committed by the contractor, the security deposit stood forfeited or unless there is clause in the terms of the agreement spelling out the eventuality that would result in forfeiture of security deposit.
7. For the foregoing reasons, I do not find any ground to interfere with the award. Objections being I.A.6003/1996 are dismissed. Award is made rule of the court. Suit is decreed for the award amount with pendentelite and future interest @ 18% from the date of filing of award till its realisation.