Nalco vs Amardeep Constructions
2022 Latest Caselaw 2981 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              ARBA No.18 of 2014
                             (Through hybrid mode)

            NALCO                                 ....           Appellant

                               Mr. Manoj Kumar Mishra, Senior Advocate
                                               Mr. T. Mishra, Advocate
                                     -versus-

            Amardeep Constructions                ....         Respondent
                                              Mr. G.N. Mishra, Advocate


                     CORAM: JUSTICE ARINDAM SINHA
                                      ORDER

05.07.2022 Order No.

6. 1. Mr. Manoj Kumar Mishra, learned senior advocate had

moved the appeal on 28th June, 2022. He had submitted, the

award is removed from the evidence. The arbitrator misdirected

himself in looking at the dispute to be a difference in the

measurement of excavated silt. In fact, claim made by

respondent was for additional work. There was no scope for

additional work in the contract. No direction was made to do

the additional work.

2. He referred to cross-examination of claimant witness

Amar Budhwar. He demonstrated from the deposition that the

evidence was, second RA bill covered work executed in

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addition to work mentioned in the agreement. There is

admission that no order was issued by NALCO for doing any

additional work. According to the witness the additional work

was ordered by NALCO Engineer. He submits, no such order

was made.

3. Today Mr. G.N. Mishra, learned advocate appears on

behalf of respondent and submits, as found by the arbitrator,

controversy between the parties revolved on the simple

question whether the silt excavated from Sabari lake was

11,225.524 cu. mts. as claimed by his client or 6,500 cu. mts. as

contended by appellant. He draws attention to deposition of

said witness, both in chief and cross-examination, to point out

that it was not a claim for additional work but the variation

from quantity provided in the contract. He draws attention to

impugned judgment dated 27th January, 2014 for reliance on the

contract quantity clause introduced and extracted in it. He relies

upon following passage, reproduced below.

"The quantity variation has been mentioned in Clause 9.0 which runs as follows:

"The quantity mentioned in the schedule is approximate in nature and may vary widely. The contractor shall have to execute the work accordingly as per the direction of Engineer-in-

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Charge. You shall not be entitled to any compensation whatsoever for a variation in the quantum of job.""

He submits, there should not be interference in appeal on the

Court below having found that the award cannot be said to

suffer from any ground under section 34 in Arbitration and

Conciliation Act, 1996, for it to be set aside.

4. Upon perusal of materials on record in the appeal, it is

clear that appellant's scope of work as per the contract was to

excavate 6,500 cu. mts. of silt from the lake. It appears to be

without dispute that the procedure provided for measurement of

silt excavated, was not adhered to. Several notings were made

and the engineer of appellant was also said to have maintained

record of measurements in his personal diary, not produced. The

arbitrator had before him parties having laid evidence. The

Tribunal found, scoring out of the figure arrived at on

measurements recorded, to be substituted by 6,500 cu. mts., did

not tally with rest of the notings made in the record of

measurements, maintained, as aforesaid, not as per procedure

provided in the contract. In analyzing the evidence, the Tribunal

found that the controversy arose because the contractor had

initialed the scoring out. The arbitrator appears to have been

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impressed with evidence of the contractor that he had initialed

on being told that first R.A. bill was to be confined to the

contract quantity and for the balance, another bill had to be

raised. Hence, relying on evidence adduced, the Tribunal came

to the finding that the controversy was only about calculation of

quantity of excavated silt.

5. Appellant has relied on cross-examination of claimant

witness to emphasis there is admission that the second R.A. bill

did not constitute any claim for extra work. The contract

providing for excavation of a specified quantity, anything above

that was extra work. There was no direction by his client to do

such extra work and nothing could be disclosed before the

Tribunal to show otherwise. This contention cannot be accepted

because clause 9, quoted above, while providing for wide

variation in the quantity excavated, only barred the contractor

from claiming compensation for doing more work. Thus he

could claim for the actual quantity difference but not as an

extra, to include compensation.

6. Considering that the measurements recorded were not as

per procedure provided in the contract, the controversy between

parties necessarily enlarged scope of inquiry by the Tribunal. It

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allowed both parties to lay evidence, documentary and oral. On

going through the evidence the Tribunal found as aforesaid. The

finding cannot be said to be such as a reasonable and prudent

person would not come to or that the view taken is not possible.

In the circumstances, this Court does not find that any of the

grounds in section 34 has been demonstrated as present in the

award.

7. Impugned judgment is confirmed. The appeal is

dismissed.

(Arindam Sinha) Judge

Sks