Sikkim High Court
Arb.A./1/2000 of Union of India and Others Vs Shri Mishri Lall Thakur on 25 August 2000
COURT OF SIKKIM Arb.Appeal No. SOOO 1. Union of India through the Defence Secretary, Government of India, New Delhi. H. The Commander Works Engineer, H.Q. 136 WE, C/0 99 A.P.O. 3. The Engineer-in-Chief B.R. (E-8), Army Headquarters, Kashmir House, DGQ, P.O. New Delhi - 11. 4. The Chief Engineer,
IN THE HIGH COURT OF SIKKIM
Arb.Appeal No. SOOO
1. Union of Indiathrough the Defence Secretary,Government of India,New Delhi.
H. The Commander Works Engineer,H.Q. 136 WE, C/0 99 A.P.O.
3. The Engineer-in-Chief B.R. (E-8),Army Headquarters, Kashmir House,DGQ, P.O. New Delhi - 11.
4. The Chief Engineer, Siliguri Zone,Sevoke Road, P.O.Salugara,Distt : Jalpaiguri, W.B.
5. The Garrison Engineer (Project),New Cantt. Gangtok, Sikkim.
Appellants.
Versus
Mishri Lall Thakur,Government Contractor,Development Area,P.O.Gangtok, East Sikkim.Respondent, Date of Decision J, 25th August, 2000
Coram!
The Hon'ble Mr. Justice Ripusudan Dayal, Chief Justice,The Hon’ble Mr. Justice Anup Deb, Judge.
Present : Mr. U. P. Sharma, Additional CentralGovernment Standing Counsel for theappellants.
Mr. T. B. Thapa, Advocate for therespondent.
JUDGMENT
Daval C .J .
This appeal is directed against the judgment and decreedated 30-10-1999 by the Court of District Judge, East andNorth at Gangtok in C.M.C. No.3 of 1995 (Arbitration).
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E. In respect of contract work, namely, provision ofMarried Accommodation for officers at New Cantonment,Gangtok under contract agreement No.CESZ/136—WE/11 of 85—86,some disputes and differences arose between the parties andwere referred to Shri Manjit Singh, Arbitrator who made anaward dated E7-1-1995. The appellants filed an applicationunder Sections 30 and 33 of the Arbitration Act, 1940 withrespect to claim No.6. The application was rejected by thelearned trial Court and, therefore, the impugned decreef ollowed.
3. Claim No.6 is "for reconstruction two times of slidedretainingwall behind storage accommodation."TheArbitrator allowed a sum of Rs.75,400/- in respect of thisclaim, stating the following reasons !- "6. This is a fact that the retaining wall constructed by the contractor collapsed during heavy rainsin 1986. It was reconstructed by the contractor but itagain collapsed in rainy season of 1987. This wasreconstructed again by the contractor and it stoodthereafter. There was no drg of the retaining wall inCA and the contractor built the same as per requirementof U of I. After two collapses, the design was changedby U of I and there was no collapse thereafter. Contractor cannot be held responsible for the collapse dueto weak design. I therefore award Rs.75,400/- againstthis claim."
4 The learned counsel for the appellants submits that the
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amount was awarded by the Arbitrator on the ground that theretaining wall constructed by the contractor had collapsedtwice because of the weak design and after the design waschanged subsequent to the two collapses, the retaining wallconstructed thereafter, has stood; but no such plea wastaken by the contractor in the claim submitted before theArbitrator. On the other hand, learned counsel for therespondent submits that no such plea was taken by the appellants before the learned trial Judge in the applicationfiled under Sections 30 and 33 of the Arbitration Act.Learned counsel for the appellants has not been able to showthat in the application under Sections 30 and 33 of theArbitration Act any such plea was taken. As such, it is notopen to the appellants to raise this plea before us in the*appeal. So, we see no merit in the appeal.
In the result, the appeal is dismissed. However, in the circumstances, tKere shall be no order as to costs.
rsr/
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