D.D.Champatiray vs Union Of India
2022 Latest Caselaw 1527 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ARBA No.34 Of 2004
                                (Through hybrid mode)

            D.D.Champatiray                         ....            Appellant

                                            Mr. S.K.Sanganeria, Advocate
                                       -versus-

            Union of India                          ....          Respondents

                                                    Mr. S.B.Jena, Advocate

                     CORAM: JUSTICE ARINDAM SINHA
                                       ORDER

24 .02.2022 Order No.

15. 1. Mr. Sanganeria, learned advocate, appears on behalf of

appellant and submits, impugned judgment dated 29th September, 2004

be set aside in appeal. His client had bid in his tender at Rs.9,91,930/-

and thereafter offered rebate of 0.15 % on tender amount. There was

overwritings to make it look like the rebate offered was at 15 % of

tender bid, reducing tender value by Rs.1,48,789/- to Rs.8,43,141/-.

The arbitrator found with his client and directed refund of wrongly

deducted Rs.1,46,801/- (giving adjustment of Rs.1,488/- being 0.15 %

rebate of tender bid value). The tribunal being the fact finding forum

went into the evidence and made appreciation of it to find that the

overwritings had changed original rebate offered.

// 2 //

2. Respondent had purportedly challenged the award. In the

challenge the Court below went into merits of appreciation of

evidence, to set it aside. This is not permissible under section 34 in

Arbitration and Conciliation Act, 1996. Consequent to setting aside

the award for payment, interest thereon was also set aside.

3. Mr. Jena learned advocate appears on behalf of respondent-

employer and submits, everything happened in Odisha but appellant

wrongfully obtained appointment of arbitrator from High Court at

Calcutta. Secondly, pursuant to final bill having been settled and paid,

clause 25 in the contract required appellant to raise dispute, if any,

within 90 days. No dispute was raised in agreed period but thereafter,

the purported claim and reference to arbitrator. He submits, the

District Judge, correctly appreciated the evidence to return finding that

the award needed to be and was set aside. There should be no

interference in appeal.

4. It appears from face of impugned judgment that subsequent to

the tender being accepted, there was overwritings regarding

percentage of rebate offered. However, pursuant to acceptance of the

tender, a formal agreement was entered into between the parties. The

agreement value was Rs.8,43,141/-, which is 15 % less than tender bid

// 3 //

value. This document appears to be undisputed. It is a primary

document and the arbitrator had not relied upon it.

5. Appellant's reliance on paragraph 8 onwards in impugned

judgment does not reveal any discussion regarding omission of

appellant to have raised dispute in agreed period after having accepted

payment on the final bill.

6. In the circumstances, it appears that no reasonable or prudent

person could have come to finding as did the arbitrator. It is, therefore,

clear that the award was perverse and found so by the District Judge.

7. There is no merit in the appeal. It is dismissed.

(Arindam Sinha) Judge Prasant