JUDGEMENT
J. B. Koshy, J. -
(1.)Two arbitration awards passed by the same arbitrator were set aside by the civil court by a common order. These two appeals are filed by the contractor against that common order. Parties are the same.
(2.)Appellant/Contractor was awarded two contracts with the respondent National Thermal Power Corporation (NTPC) for (1) the construction of temporary office-cum-storeshed No. 2 at plant area of Kayamkulam STPP and (2) construction of an approach road to the southern block of plant area of Kayamkulam STPP. Clause 56 of the general conditions of contract provides for arbitration. First paragraph of Clause 56 reads as follows:
"Except where otherwise provided for in the Contract all questions and disputes relating to the meaning of the specifications, designs, drawing and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works; or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the General Manager of National Thermal Power Corporation Ltd., and if the General Manager is unable or unwilling to act to the sole arbitration of some other person appointed by the Chairman and Managing Director...."
It was also provided as follows:
"The award of the arbitrator shall be final, conclusive and binding on all parties to this contract."
When disputes arose in respect of these two contracts contractor requested for arbitration. Since that was not acceded, application was filed for appointment of arbitrator. Respondent contended that most of the disputes are outside the purview of arbitration. It was also submitted that there was accord and satisfaction. After detailed consideration, Sub Court held that there is no accord and satisfaction and directed the Chairman and Managing Director of the respondent Corporation to appoint arbitrator in terms of Clause 56 of the conditions of contract. The Court also held that whether there is any arbitrable dispute exist or not has to be considered by the arbitrator to be appointed by the Chairman and Managing Director as per the terms of contract entered into by the parties. In accordance with the above judgment, Shri K.J. Naik, Deputy General Manager of respondent NTPC, who is basically an expert civil engineer, was finally appointed as the sole arbitrator. The arbitrator was appointed on 10-8-1994. In the appointment order, it was also requested to give a reasoned and speaking award keeping in view of the observations of the court. The arbitrator partly allowed certain claims of the contractor on 23-5-1997. According to the court below, the arbitrator has exceeded the jurisdiction and misconducted himself relying on extraneous matters. Court also went into the merits of the matter in detail on all claims and found that the arbitrator erroneously awarded amounts. Hence, the awards were set aside and directed to appoint a new arbitrator to decide the matter. It is the contention of the appellant that the Deputy General Manager of the respondent was the sole arbitrator. He heard both parties, took evidence from both parties and there is no allegation of violation of the principles of natural justice, considered the entire matter and meticulously passed the award. Finding of the arbitrator based on evidence cannot be set aside by the court as the arbitrator is the sole judge with regard to the disputes between the parties. But, the Court considered the matter as if it was an appeal and findings of the Court are perverse as arbitrator's findings are based on evidence. It is also submitted that the arbitrator did not travel beyond the jurisdiction vested in him.
(3.)Now, we will consider M.F.A.No. 859 of 2002 filed against the award in O.P. (Arb.) No. 72 of 1997 with regard to the construction of temporary office-cum-storeshed No. 2 at plant area. Letter of award was given on 14-6-1990. Before that, the decision to give the award was informed by telegram on 24-5-1990. The actual work was completed on 15-2-1991. A pre-final bill was submitted on 22-2-1991. He was informed by the NTPC that part bills were given from time to time on the basis of the terms of the contract and since the actual work was completed, it is for him to give the final bill. Accordingly, final bill dated 11-8-1991 was submitted on 12-8-1991 for an amount of Rs. 20,77,732.29. NTPC refused to give a completion certificate by letter dated 20-12-1991 as the contractor did not remove the surplus materials to the stores. Till the surplus materials, are received back, it shall be deemed as incomplete. The contractor on 20-12-1991 issued a lawyer notice demanding arbitration. Various additional claims than that was mentioned in the final bill were also raised in the above lawyer's notice. Since final bill was not paid, appellant filed Writ Petition before this Court (O.P.No. 7703 of 1992). After filing the O.P., reply to the lawyer notice was sent on 30-5-1992 denying the claims and also pointing out that if there is dispute, remedy is to go for arbitration subject to arbitrability of disputes. The Writ Petition was disposed of recording the submission that final bill will be settled within two months. Final payment was made on the basis of the final bill on 6-8-1992 and security deposit was released on 12-8-1992. The above payments were not accepted in settlement of all the claims. With a letter of protest dated 12-8-1992, the above cheques were accepted by the contractor. Thereafter, they approached the Sub Court and on the basis of the directions of the Sub Court and in accordance with Clause 56 of the general conditions of contract, an arbitrator was appointed and award was passed on 23-5-1997.