Gujarat High Court
Marvellous Construction Co vs State Of Gujarat on 24 November, 2025
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C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025
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Reserved On : 13/11/2025
Pronounced On : 24/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 478 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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MARVELLOUS CONSTRUCTION CO.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
PARAS K SUKHWANI(8284) for the Applicant(s) No. 1
MR BHARAT VYAS, AGP for the Opponent(s) No. 1
RULE SERVED for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this petition filed u/s 12 of the Gujarat Public
Works Contracts Disputes Arbitration Tribunal Act, 1992 (in
short "the Act"), the petitioner challenges judgment and
award dated 30.6.2016 passed in Arbitration Reference No.18
of 2001 by the learned Arbitration Tribunal, whereby the
reference moved by the petitioner was partly allowed.
2. In reference proceedings, the petitioner was declared
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entitled to get in all Rs.2,39,509/- from the respondent with
10% yearly interest from the date of filing of arbitration
reference till its realization deducting the interest, if any,
accrued or earned on the security deposit in form of fixed
deposit or savings certificate, bonus, etc. The petitioner is a
government approved A-class contractor. The Executive
Engineer, R&B Division, Godhra pursuant to the tender issued
for work of FDR to Ahmedabad - Godhra - Dahod - Indore
Road, awarded the work for carrying out the repairing work
on the road from 144.00 km to 161.00 km on the aforesaid
stretch of the highway. The work was awarded to the
petitioner at 15.20% higher cost than the tender cost of
Rs.39,99,925/-. The work order was accordingly issued on
24.2.1997 with the condition that the work was to be
completed within five months therefrom, however, the
petitioner completed the work on 12.12.1997.
3. In the aforesaid factual aspect, the petitioner claimed
that though the disputed contract work is completed, the
security deposit and performance bonus, etc. so also accrued
interest thereon were not paid back. It is also come on record
that in the first bill, Rs. 22,44,829/- was paid by the Executive
Engineer leaving Rs.17,55,096/- remained outstanding.
Therefore, the petitioner after exchanging the notice and
letters, moved aforesaid arbitration reference before the
learned Tribunal claiming outstanding amount of the first bill
as well as the amount of the security deposit and other related
statutory advance.
4. The learned Tribunal, after permitting both the parties
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to lead the evidence and after hearing learned advocates for
both the parties, allowed claim No.1 i.e. amount of final bill
and claim No.2 i.e. amount of the refund of the security. The
first claim was partly allowed in tune of Rs.65,709/-. The
second claim was allowed in full granting the refund of the
security amount of Rs.1,73,800/- in total, amount of
Rs.2,39,509/- was awarded by the learned Tribunal along with
10% interest thereon per annum.
5. Being aggrieved by allowing first claim partly, the
petitioner has preferred this petition inter alia on the ground
mentioned in the petition memo.
6. Learned advocate Mr. Paras Sukhwani appearing for the
petitioner would submit that the learned Tribunal has
committed serious error in partly allowing the reference and
granted meager amount. The judgment though granted
award in favour of the petitioner, however, runs with flaw,
passing without understanding the facts of the case. He
would further submit that it is no one's case that work
awarded by the Executive Engineer has not been completed.
He would further submit that the work carried out by the
petitioner for repairing the road was also certified by the
Executive Engineer before preparing the final bill. He would
further submit that on belated defence of improper thickness
of the road, the Executive Engineer has deducted
supplementary amount from the final bill, which is
erroneously upheld by the learned Tribunal. He would further
submit that except raising the complaint about thickness of
the sealcoat and Bituminous macodant layer on a lesser
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proportion, raised on 8.6.1999, no allegation was ever made,
no grievance was ever raised. He would further submit that
raising of such grievance on 8.6.1999 raised first time was
beyond the statutory limit and guarantee of work and
therefore raising of such grievance pales into insignificance.
The defect liability period was already expired before the
grievance was first time raised. In the aforesaid
circumstances, the Executive Engineer was required to pay
full bill, and since he has not paid the entire final bill, the
reference was made to the Tribunal to claim full payment
award, and was required to be adjudicated accordingly.
However, the learned Tribunal has committed serious error in
awarding meager amount of Rs.65,709/- towards arrears of
the claim of the amount of final bill. He would further submit
that the petitioner has no grievance in regards to the award of
amount of refund of the security of Rs.1,73,800/- or charging
of interest at 10% upon the amount of award.
7. In the premises aforesaid arguments, learned advocate
Mr. Sukhwani requests to allow this petition and to grant the
complete relief, as prayed for, by the petitioner in the
arbitration reference.
8. On the other hand, learned AGP would submit that when
the first bill was tendered and was assessed on 28.10.1997 by
the Executive Engineer, the bill was claiming full amount of
work as claimed in the arbitration reference, however, the
government, after considering the fact that work of surfacing
the road was not made as per the standard and condition of
the tender, has paid the amount at a reduced rate. He would
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further submit that while paying the amount of Rs.
22,44,849/-, the Executive Engineer has given a specific
reason that the road was not surfaced with required thickness
as per the tender specification and there was insufficient
thickness of the sealcoat and Bituminous macodant layer on
the road and considering these aspects, the full and final bill
was paid in tune of Rs. 22,44,849/-. He would further submit
that the petitioner has accepted the amount of the bill without
raising any objection or keeping liberty to raise the objection
against applying reason of lesser thickness applied on the
road for paying reduced amount. Therefore now, the
petitioner is not entitled to claim any further amount. Learned
AGP would further submit that it is incorrect to say that the
dispute arose on 8.6.1999 first time. He would further submit
that the Executive Engineer and the State Government were
very much clear on 28.10.1997 when the work was finalised.
The written opinion was expressed that required thickness of
the sealcoat and Bituminous macodant layer was not applied
on the road. In the aforesaid circumstances, learned AGP
would submit that filing of arbitration reference was billeted
afterthought and has rightly been addressed by the learned
Tribunal. He would further submit that in the revisional
jurisdiction, since no error has been committed by the learned
Tribunal, warrants interference at the hands of this Court.
9. Upon above submission, learned AGP prays to dismiss
this petition. I have heard learned advocates for both the sides
and anxiously paid consideration to the material placed on
record, including the order of the learned Tribunal passed in
arbitration reference.
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10. At the outset, let refer section 12 of the Act of 1992, as
to understand the scope of interference:-
"SECTION 12 : Revision
(1) The High Court may, suo moto at any time or on an
application made to it within three months from the date
on which the award or interim award is made or
reviewed under this Act, by any party aggrieved by the
award or interim award so made or reviewed, call far the
record of any case in which an award or interim award
has been made or, as the case may be reviewed and if
the Tribunal appears-
(a) to have exercised a jurisdiction not vested in it by
law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction
illegally or with material irregularity, the High Court
may make such order in the case as it thinks fit.
(2) For the purpose of exercising it powers of revision
under this section, the High Court shall have the same
powers as it has, and as far as may be, follow the same
procedure as it follows, under the Code of Civil
Procedure, 1908 (V of 1908) while exercising its powers
of revision under section 115 of the Code, and for that
purpose the Tribunal shall be deemed to be a Court
subordinate to it."
11. The revisional power vested with the High Court is to
examine that whether the learned Tribunal (a) have exercised
jurisdiction not vested in it by law, or (b) to have failed to
exercise a jurisdiction so vested, or (c) to have acted in the
exercise of its jurisdiction illegally or with material
irregularity. If these three or any of the conditions exist, it
gives power to the High Court to exercise revisional
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jurisdiction.
12. Sub section (2) of section 12 indicates that power of the
revision u/s 12 is akin to the power u/s 115 of the CPC.
13. In Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat, 1969 (2) SCC 74, it has been observed
by the Hon'ble Apex Court as under:-
"Now when the aid of the High Court is invoked on
the revisional side it is done because it is a superior
court and it can interfere for the purpose of rectifying
the error of the court below. Section 115 of the Code
of Civil Procedure circumscribes the limits of that
jurisdiction but the jurisdiction which is being
exercised is a part of the general appellate
jurisdiction of the High Court as a superior court. It is
only one of the modes of exercising power conferred
by the statute; basically and fundamentally it is the
appellate jurisdiction of the High Court which is
being invoked and exercised in a wider and larger
sense. We do not, therefore, consider that the
principle of merger of orders of inferior courts in
those of superior Courts would be affected or would
become inapplicable by making a distinction between
a petition for revision and an appeal. (Emphasis
supplied)."
14. In Yunus Ali (Dead) Through His L.Rs. Versus
Khursheed Akram, 2008 AIR (SC) 2607 in regards to
power u/s 115 of the Code, the Hon'ble Apex Court observed
thus:-
"It is well-settled position in law that u/s. 115 of the
Code of Civil Procedure the High Court cannot re-
appreciate the evidence and cannot set aside the
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concurrent findings of the Courts below by taking a
different view of the evidence. The High Court is
empowered only to interfere with the findings of fact
if the findings are perverse or there has been a non-
appreciation or non-consideration of the material
evidence on record by the courts below. Simply
because another view of the evidence may be taken is
no ground by the High Court to interfere in its
revisional jurisdiction."
15. Thus, the revisional power for all limited grounds is
primarily to correct the jurisdictional error, as the High Court
is superior Court, hold power to correct error of
understanding provisions of law and application of them.
16. In background of aforesaid legal provisions of law, let
examine that whether the findings of the learned Tribunal are
perverse or there has been unknown appreciation or non-
consideration of material evidence on record by the Court
below or the learned Tribunal has exercised jurisdiction not
vested in it by law or failed to exercise jurisdiction so vested
or illegally exercised jurisdiction with material irregularity.
17. In para 5,6 and 9 of the impugned judgment and award,
the learned Tribunal has observed thus:-
"5. The sum and substance of the argument of L.A.
Mr. H. S. Shah for the respondents is that the work of
the petitioner is sub-standard and it is not as per
specification of the contract and due to inferior
quality of work, during Monsoon, patches had
occurred and the petitioner was directed to carry out
repairing and rectification work and the Deputy
Engineer has given notice Exh. P-12 and the
Executive Engineer has also given notice which is at
Exh. P-13. Moreover, workmanship of the petitioner
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is poor and in these circumstances in the first R.A.
Bill petitioner was paid reduced rate due to carrying
out the work in lesser thickness of each layer than
specified in the tender and this these things get
support from the R.A. Bill which is produced along
with Exh. 40. Shri Shah has further argued that on
13/6/97 Superintending Engineer had taken visit of
the work site( P-14) and ne found that the thickness
of the sealcoat and Bituminous macodant layer is less
andnot as per standard specification. Thereafter
Executive Engineer, Deputy Executive Engineer and
other technical staff visited the site and inspected the
work. They measured the thickness of the layers of
B..S.G., sealcoat and Bituminous macadam at
different chainages of the work and Rozkam was
prepared and copy thereof is produced at Exh. 38 and
the work of the petitioner was found sub-standard
and not as per specification of the tender. The
thickness was found to be lesser than the specified.
Accordingly each item was worked out and the first
running bill of Rs. 22,44,847-00 had been paid on
28/10/97 and the petitioner has accepted the
payment and in these circumstances petitioner is not
entitled for final bill amount as claimed by him.
6. After hearing the LAs. of both the sides and
perusing the record placed by both the parties, it is
found that it is not disputed that the work was
allotted tot he petitioner by agreement No. B-2/73 of
1996-97 and the work order was issued on 24/2/1997.
The stipulated period of work is three months and the
work is required to be completed on or before
25/5/95 and this is supported by Exh. P-11 which 15
the copy of the work order.. The cost of the work is
Rs. 34,71,909-00.It is also found from the record Exh.
R-34 which the copy of second and final bill that work
has been completed on 12/12/97. It is also not
disputed that respondents have not paid the full
amount of final bill as demanded by the petitioner
alleging that the work of the petitioner regarding
sealcoat and other items i.e. B.S.G. and B.M. is sub-
standard and not as per tender specification and
thickness is found to be less when the officers of the
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respondents measured it on site, some time in the
month of June, 1997 (Ex. 35 & Ex. 39). As against
this, it is the say of the petitioner that notice
regarding less thickness was given after two years of
completion of the work when defect liability period is
over. But, if we peruse the record, it is found that
during the course of execution of the work, damages
to the surface took place and the petitioner was
directed for repairing by the Deputy Executive
Engineer on 30/8/97 and the copy thereof is produced
at Exh. P-12. Thereafter Executive Engineer has also
written a letter to the petitioner for this purpose and
the copy thereof is produced at Exh. 13. If we peruse
both the letters, in any letter we do not find that the
thickness of sealcoat and other coats is not as per
standard specification and it is less. The respondents
have relied upon the Rozkam which they have
performed after verifying the thickness of road
surface. The copy thereof is produced at Exh.35.
Along with the Rozkam the respondents have also
produced the information regarding thickness of
sealcoat and other coats which were taken at various
places of the road work which was allotted to the
petitioner. In these circumstances it can be seen that
the thickness of sealcoat and other coats is less than
the specified and Rozkam was prepared. The
respondents have reproduced type copy of Rozkam
(Exh. 35) on the basis of original Rozkam (Exh. 39)
which is not legible. If we go through Rozkam, there
is ambiguity in the date of Rozkam. But if we peruse
the Rozkam, in that Rozkam it is found that site was
inspected and Rozkam was prepared after visit of
Superintending Engineer dated 26/6/97 and as per
his oral instruction of the officer site was inspected
and in these circumstances it can be presumed that
Rozkam is executed after 26/6/97 and before
preparation of 1 st R.A. Bill which was paid on
28/10/97. In these circumstances notices dated
30/8/97 and 6/10/97 and Rozkam is more helpful to
prove that the work which was executed by the
petitioner was sub-standard and having less thickness
of sealcoat and other coats. If we peruse 1 st R.A.
Bill, copy of which is produced along with Exh. R-26,
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this R.A. Bill hap been prepared and paid on 28/10/97
for the amount of Rs. 22,44,849-00. In this R.. bill,
petitioner was paid reduced rates for items No. 1, No.
2, No. 3, No. 4 for the work of B.S.G., B.M. and
sealcoat for having executed the work in less
thickness than specified in tender (Exh. R-26, page 85
to 96) and the petitioner has accepted the amount of
bill without any objection and he has accepted that he
has received the amount of Rs. 22,44,829-00 towards
first R.A. Bill, in his petition. and in these
circumstances it can be said that the petitioner had
knowledge that the work was executed in lesser
thickness and not as per standard specification and it
is sub- standard work and in these circumstances
reduced rate and reduced payment has been given to
the petitioner in 1st R.A. Bill and in these
circumstances we do not find substance in the
argument of L.A. Mr. K.G. Sukhwani for the petitioner
that after defect liability period is over, respondents
had raised the dispute regarding less thickness of the
sealcoat.
9. After hearing the L.As. of both the sides, it is the
fact that the officers of the respondents have given
two notices which are dated 30/8/97 and 6/10/97. la
both the notices they have directed the petitioner for
repairing damages which had occurred due to
Monsoon. As per the copy of 1 st R.A. Bill which is
produced along with Exh. R-26 in which reduced rate
has been paid and petitioner has accepted the bill
without prøtest. Moreover, it is found from the 2nd
and final bill Exh. 38 that the petitioner has
completed the work on 12/12/1997. The respondents
were called upon to submit updated final bill of the
petitioner which they have produced at R- 34. In
these circumstances the petitioner is entitled for the
amount of 2 nd and final bill of Rs. 65,709-00 after
statutory deduction of cost of materials, Asphalt,
Time Limit Deposit, I.T. etc."
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18. What could be noticeable that on 3.6.1997, the
Superintending Engineer had paid visit of the work site (Exh.
P14) and noticed that thickness of sealcoat and Bituminous
macodant layer was par and substandard than required as per
the tender condition. The Executive Engineer, the deputy
Executive Engineer, and other technical staff subsequently
visited the site and inspected the work, and on that day,
measurement of thickness of sealcoat and Bituminous
macodant layer at different chinages of the work was carried
out, pursuant to which, Rojkam was also prepared [See
Exh.35]. It is on that very day, the Executive Engineer found
the work of the petitioner substandard and much lesser than
the specifications of the tender. The first running bill was
tendered and paid on 28.10.1997 noting aforesaid anomaly in
the work of the petitioner. Without raising any objection, the
petitioner has accepted the amount of Rs.22,44,847/- much
less than the billed amount without raising any protest as
against the total bill amount of Rs.34,71,909/- [See: Exh.R34].
The road which was resurfaced having been measured was
found less than the required thickness of the sealcoat and
Bituminous macodant layer, which has witnessed pothole
post rainy season. The deputy Executive Engineer by letter
dated 30.8.1997 directed the petitioner to repair all the
potholes [See: Exh.P12]. Another written communication was
made at Exh.13. These letters were not replied. These letters
specified and established that resurfacing work of the road
was substandard and not as per the specifications. The
petitioner in proceedings of the arbitration reference i.e. the
copy of Rojkam at Exh.35 along with the documents indicate
that the petitioner has not applied sufficient sealcoat and the
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thickness thereof was sub standard and less than the standard
fixed in the tender. All these aspects reveal that the learned
Tribunal has considered evidence on record and after
analyzing evidence on record, passed impugned award after
applying mind. Perusal of the award passed by the learned
Tribunal noticed that the learned Tribunal has widely
discussed and scrutinized the evidence relied before it and
passed the impugned award. According to this court, the
petitioner failed to make out that the intervention of this
court, under the revisional jurisdiction is necessitated.
19. For the foregoing reasons, the petition fails and stands
dismissed. Rule discharged.
20. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
