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Patna High Court

Narayan PrasadversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Patna High Court set aside the arbitral award and the order of the Additional District Judge, allowing the appeal.

Summary

The appellant, a contractor, entered into a contract with the State of Bihar for earth‑work on the Zamania Pump Canal. After delays and alleged non‑performance, the Executive Engineer rescinded the contract and issued a final bill, which the contractor disputed. The dispute was referred to arbitration under Clause 23 of the contract, and the sole arbitrator issued an award on 26‑09‑2006 granting the State a sum with interest. The contractor challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996, alleging procedural irregularities, denial of natural justice, and improper handling of evidence. The Additional District Judge dismissed the challenge, but on appeal the Patna High Court held that the arbitrator had not complied with the statutory requirements of Sections 23 and 24 of the Act and had violated principles of natural justice, and therefore set aside both the award and the lower court’s order. The appeal was allowed without any order as to costs.

Issues considered

  • The award can be set aside under Section 34(2) of the Arbitration and Conciliation Act, 1996 on grounds of violation of natural justice and procedural defects.
  • Whether the arbitrator complied with the evidentiary and hearing requirements of Sections 23 and 24 of the Act as they stood at the time of the arbitration.
  • Whether the counter‑claims raised by the State at the last hearing were admissible.
  • Whether interest could be awarded from 13‑09‑2002 despite the award being dated 26‑09‑2006.
  • Whether the Executive Engineer had authority to rescind the contract and forfeit the security deposit.

Legislation cited

Subjects

  • Arbitration
  • Section 34 challenge
  • Natural justice
  • Evidentiary procedure
  • Contract rescission
  • Interest award
  • Counter‑claim

Judgment

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                   COMMERCIAL APPEAL No.1 of 2024
======================================================
Narayan Prasad, son of Late Lochan Ram, Resident of Daud Nagar, Ward No.
-13, Police Station-Daud Nagar, District-Aurangabad.
                                                           ... ... Appellant
                                   Versus
The State of Bihar through the Executive Engineer, Zamania Pump Canal
Division, Ramgarh, District-Kaimur.
                                                        ... ... Respondent
======================================================
Appearance :
For the Appellant     :       Mr. Manish Prakash, Advocate
For the Respondent    :       Mr. Anjani Kumar, AAG-4
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
        and
        HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

 Date : 30-03-2026


           Heard learned counsel for the appellant and learned

AAG-4 for the State.

           2. The appellant has preferred this appeal against the

judgment and order dated 05.10.2021 passed in Title Suit No. 10

of 2007 (hereinafter referred to as the ‘impugned judgment’)

passed by learned Additional District Judge-X, Kaimur at Bhabhua

(hereinafter referred to as the ‘learned court’), whereby the

application filed by the appellant under Section 34 of the

Arbitration and Conciliation Act, 1996 (hereinafter called as ‘the

Act of 1996’) was rejected. The appellant has also prayed for

setting aside the award dated 26.09.2006 made and published by
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       the sole Arbitrator Sri Rameshwar Choudhary, Superintending

       Engineer, Water Ways Circle, Bhabhua, Kaimur.

                   3. At the outset, it is recorded that the nomenclature of

       the proceeding before the learned court gives an impression that it

       was perhaps a title suit but in fact the same was registered on an

       application under Section 34 of the Act of 1996 for setting aside

       the award.

                   Brief Facts – Case of the Appellant

                   4. The original applicant before the learned court is the

       appellant before this Court. The appellant, namely, Narayan Prasad

       initially filed an application under Section 34 of the Act of 1996 in

       the court of learned Sub Judge- I, Kaimur at Bhabhua for setting

       aside the award dated 26.09.2006 made and published by the sole

       Arbitrator Sri Rameshwar Choudhary, Superintending Engineer,

       Water Ways Circle, Bhabhua, Kaimur.

                   5. The appellant is a contractor registered with Water

       Resources      Department,       Government           of   Bihar   and   other

       Government Works Department. The case arises from award of a

       tender in favour of the appellant for execution of Zamania Canal

       Pump, he entered into an agreement which was signed by the

       Executive Engineer, Zamania Pump Canal Division, Ragarh on

       27.05.1998 for excavation of earth work in Zamania (Link) canal
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       from 2.24 Km to 4.569 Km vide agreement no. 2F2 of 1998-99.

       The amount of agreement was Rs. 89,93,488.90/-. He had

       deposited Rs. 2 lakhs as earnest money and Rs. 4,75,000/- as

       initial security deposit. The date of the commencement of the work

       was 22.05.1998 as recorded in the agreement. The time for

       completion of the work was only one year from the

       commencement of the work and the rate was negotiated at the rate

       of 5% above the estimate rate. The entire length of canal was to be

       filled. The opposite party/ Respondent was under contractual

       obligation to make available the site i.e. permanent land for

       construction of canal as well as temporary land called borrow area

       for excavation of earth to fill the canal. It is the case of the

       appellant that, though the opposite party acquired the permanent

       land for construction of canal but failed to acquire temporary land

       till March, 2002. The period of completion of the work under

       agreement was extended by the opposite party up to 31.03.2002

       due to non-acquisition of temporary land for filling work. After the

       expiry of the extended period of completion of work, the

       Executive Engineer vide his letter no. 346 dated 15.04.2002

       intimated that the acquisition of temporary land has been made and

       the Superintending Engineer vide his letter no. 850 dated

       13.04.2002 directed the appellant to commence the work on war
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       footing. In between, there were multiple communication for proper

       arrangement of land via land acquisition for both permanent and

       temporary land required for completion of the work and also

       demand for sanction and permission for arrangement of various

       machines and extension of work order period.

                   6. The appellant vide his letter dated 07.05.2002

       addressed to the Executive Engineer informed that he would

       recommence the work under the agreement only if the rates in the

       contract is revised, balance payment is made and extension of time

       is granted for balance work under the agreement. The contention

       of the appellant was strictly in accordance with Sections 55 and 56

       of the Contract Act but the Executive Engineer failed or neglected

       to consider the above noted letter of the appellant and issued

       notice for final measurement vide his letter no. 510 dated

       03.06.2002 fixing the date of measurement from 19th to 22nd of

       June, 2002.

                   7. The appellant vide his letter dated 19.06.2002

       intimated the Executive Engineer about his willingness to

       recommence the work on the terms and conditions noted in his

       earlier letter dated 07.05.2002, or if it is not acceptable, final

       measurement be taken and agreement be closed. In spite of the

       letter for requesting to recommence the work on the above terms
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       and conditions, appellant was present on the worksite for final

       measurement on the said date, but no measurement was taken by

       the subordinate officers of the respondents i.e. Assistant Engineer

       (S.D.O.) or Junior Engineer between 19.06.2002 to 22.06.2002,

       which is also established from the letter no. 601 dated 24.06.2002

       of the Executive Engineer, in which letter dated 19.06.2002 of the

       appellant finds place, but there is no whisper of taking final

       measurement.

                   8. It is the case of the appellant that the agreement with

       the appellant was rescinded by the Executive Engineer in utter

       disregard of agreed terms of the contract in an arbitrary manner

       exceeding his authority, in which it was mentioned that appellant

       has completed the carriage of earth work as per sanction but

       comparatively less profitable work by head load and the head load

       has been executed in negligible quantity, which was totally illegal

       and without considering or replying the request of the appellant for

       recommencement of work. It is submitted that the Executive

       Engineer, Zamania Pump Canal Division, Ramgarh in collusion

       with his subordinates manufactured a purported final bill after a

       gap of two months without taking final measurement in presence

       of the appellant and communicated it to the appellant vide his

       letter no. 892 dated 29.08.2002 in which the value of bill was
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       shown in minus (-) Rs. 7,41,348.00/-. The total recoverable

       amount from the appellant shown in the bill was Rs.

       14,09,922.00/- without giving any opportunity to the appellant or

       supplying the final measurement after so-called final measurement

       which shows arbitrary manner and predetermined intent to incur

       loss to the appellant. The appellant wrote to Section Engineer and

       other superior officers of the respondents that he had worked in

       accordance with the instructions of Executive Engineer and his

       subordinates for filling earth work from the land as shown by

       them. He further contended that the said final measurement of the

       executed works and pits were made in his absence thereby not

       acceptable to him and he also shows his inability to fill up the pits

       as it was done on the instruction of the Executive Engineer. The

       purported final bill was disputed and challenged by the appellant

       before Executive Engineer and superior officials of the

       respondent-department vide his letter dated 21.10.2002.

                   9. For redressal of his grievances, the appellant

       approached this Court in C.W.J.C. No. 13898 of 2004 assailing the

       action of the respondent-department. At this stage, the writ court

       vide order dated 07.09.2005 referred the dispute between the

       parties to the Superintending Engineer, Water Ways Circle,

       Bhabhua as arbitrator under clause 23 of the Conditions of contract
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       in Agreement no. 2 F2 of 1998-99 with a direction to adjudicate

       the said claim within a period of six months.

                   10. In pursuance to the above noted order, Sri

       Rameshwar Choudhary, Superintending Engineer Water Ways

       Circle, Bhabhua acting as sole arbitrator issued notice to the

       appellant and the respondent-department. The appellant appeared

       before the sole arbitrator in the arbitral proceeding. Prayers were

       made on behalf of the appellant before the sole arbitrator for

       direction to the opposite party to make available the relevant

       documents relating to the dispute which were said to be in

       exclusive custody of the opposite party but in spite of direction by

       the sole arbitrator, some vital document such as level books and

       graph sheets prepared during the measurement of Running

       Account Bills were withheld by the opposite party which was

       brought to the notice of the sole arbitrator by application of the

       appellant dated 17.08.2006.

                   11. The appellant contended that the said documents

       were withheld with malafide motive because those documents

       would have established the incorrectness of so called final bill. The

       arbitral proceeding concluded on 04.09.2006.

                   12. During the arbitral proceeding, claims and

       documents available with the appellant were filed from time to
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       time and consolidated claims of the appellant along with the

       available relevant documents were filed on 17.08.2006. In the last

       meeting of arbitral proceeding held on 04.09.2006, for the first

       time, a counter claim of Rs.14,09,922.00/- was made by the

       opposite party against the appellant. The sole arbitrator concluded

       the arbitral proceeding on the same day and directed the parties to

       submit stamp paper for award.

                   13. On 27.09.2006, the appellant received the true

       attested copy of the award made, signed and published by the

       learned sole arbitrator on 26.09.2006 along with notice vide Memo

       No. 1763 dated 26.09.2006. The award dated 26.09.2006 made,

       and published by the sole arbitrator Sri Rameshwar Choudhary,

       Superintending Engineer, Water Ways Circle, Bhabhua, Kaimur

       under Agreement No. 2 F2 of 1998-99 was challenged under

       Section 34 of the Act of 1996 before the court learned Sub-Judge-

       I, Kaimur at Bhabhua and the same was registered as

       Miscellaneous (Arbitration) Case No. 61 of 2006 which was

       transferred in the court of learned Additional District and Sessions

       Judge-X, Kaimur at Bhabhua, after hearing both the parties at

       length, the above petition was dismissed vide judgment dated

       05.10.2021. Being aggrieved of the said order, this commercial

       appeal has been preferred.
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                   Case of Respondent-State

                   14. It is admitted fact that the parties entered into a

       contract vide agreement dated 27.05.1998 and in terms whereof

       the agency (Appellant) undertook to construct the main canal from

       2.24 to 4.569 K.M of Zamania Pump Canal. The estimated value

       of the work was Rs. 89,93,488/- and the agreement value was Rs.

       94,43,163/-. The work was to be completed by the agency

       (Appellant) in one year and the work was to commence on

       20.05.1998. The agency (Appellant) was allowed to bring earth

       from the plots of farmer nearby on mutual understanding and the

       work started accordingly by the appellant. As per agreement in F2

       form, the earth work by mechanical means was to be done upto 1

       K.M lead and the quantity of earth was 64413 M³. Thereafter,

       arrangement of temporary land was also made available to the

       agency (appellant) in which the work was in progress.

                   15. It is stated that the agency (appellant) excavated

       earth from both toe of the proposed canal bank at his own will

       causing danger to the canal to fall in H.G. line. As such, the

       agency (appellant) was to refill the pit by compacted earth at his

       own cost. Therefore, the appellant was asked to refill the pit at his

       own cost vide Letter No. 441 dated 28.03.1999. However, the

       work could not be completed by the appellant within the stipulated
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       period and so at the instance of appellant the time was extended till

       31.03.2000. But the work was done by the agency till June 2000.

       The agency had completed the earth work which was to be done

       by mechanical means but left the remaining earth work which was

       to be done by head load since then the agency had applied for the

       extension of time to complete the work up to 31.03.2002.

       Appellant did not complete-the work, since then the agency was

       informed and asked several times by Executive Engineer to

       complete the work through various letters on several dates and

       lastly by superintending Engineer's Letter No. 74 dated 14.01.2002

       and Letter No. 850-dated 13.04.2002 but the agency did not turn

       up to complete the remaining work and the entire working season

       got lapsed. By that time, temporary land was made available to the

       agency. In this connection Letter No. 346 dated 15.04.2002 issued

       by the Executive Engineer Zamania Pump Canal Division

       Ramgarh clearly indicates that temporary land was already

       acquired and the agency/contractor was directed to complete the

       work.

                   16. It is further stated that the agency (Appellant) did not

       complete the work and, thus, caused heavy financial loss to the

       department. Thus, the department suffered a lot due to negligence

       of the agency in completing the work assigned to him in spite of
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       granting him time extension twice. Hence, decision was taken

       against the agency according to F2 agreement clauses to rescind

       the agreement. The Appellant (agency) worked till June 2000 and

       total amount Rs. 83,79,311/- on a/c bill, which was an advance

       payment.

                   17. On the basis of final bill Rs. 7,41,328/- was found to

       have been received by the Appellant/contractor in excess up to

       15th on a/c bill. The Appellant is also liable to pay Rs. 6,68,594/-

       to the State for rectification of the ditch. In between, the appellant

       approached this Court in C.W.J.C. No. 13898 of 2004 and in

       regard to the Arbitration clause present in the agreement, this

       Court by an order dated 07.09.2005 referred the subject matter of

       dispute before the superintending Engineer Water Ways Circle

       Bhabua Kaimur, by appointing him as a sole arbitrator and thus, an

       arbitration proceeding was initiated and the parties were noticed.

                   18. The Appellant (agency) appeared and filed his

       statement of facts and his documents. The State of Bihar through

       the Executive Engineer Zamania Pump Canal Division Ramgarh

       also filed statement of facts and supporting documents and denied

       the liabilities of the state. On behalf of the state a claim of Rs.

       7,41,329/- was made against the contractor on the basis of final

       bill as this amount was found to be received by the contractor in
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       excess up to 15th on a/c bill. A sum of Rs. 6,68,594/- was also

       claimed on behalf of the state for rectification of the ditch caused

       by the contractor by excavating earth within the undisturbed strip

       of 15 meters from outer toe of the embankment. The learned

       Arbitrator provided ample opportunity of hearing to both the

       parties and after hearing the parties and considering the entire

       materials on record passed the award in question in the arbitration

       proceeding in accordance with the law.

                   Findings of the Sole Arbitrator

                   19. The learned Arbitrator considered the claims of both

       the parties. The total 9 claims raised by the appellant (hereinafter

       referred to as ‘contractor’) as under Schedule-1 (Rs.3,21,237.11),

       Schedule-2 (Rs. 3,19,677.43), Schedule-3 (Rs. 34,216.56),

       Schedule-4 (Rs. 1,79,552.39), and Schedule-5 (Rs. 28,814.94)

       related to alleged dues for agreed items of work. The Arbitrator

       found that although the contractor relied upon numerous

       documents in support of these claims, he failed to submit any bills

       for the said items, even before the Executive Engineer, for

       claiming payment. It was admitted that notice had been issued by

       the Executive Engineer for final measurement, and according to

       the State, such measurement was conducted after due notice. The

       contractor contended that the measurement was not carried out in
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       his presence, however, he failed to produce any reliable evidence

       in support of this claim and did not file any affidavit to establish

       that the measurement was not conducted on the notified date. The

       Arbitrator further observed that the contractor did not submit any

       bill showing execution of work in quantities different from those

       recorded in the final measurement. In these circumstances, the

       correctness of the final bill could not be doubted, and once the

       final bill was held to be correct, the claims under Schedule-1 to

       Schedule-5 were found to be untenable and were accordingly

       rejected.

                   20. In Schedule No. 6, the contractor claimed a sum of

       Rs.40,000/- on account of crop compensation allegedly paid to

       landowner farmers. However, failed to produce any reliable

       evidence to establish that the Executive Engineer had ever directed

       such payment due to non-availability of temporarily acquired land.

       In the absence of any such direction, the said claim is not fit to be

       allowed and the same has been rejected. Further, it has been held

       that the contractor claimed a sum of Rs. 22,872/- under Schedule

       7(a) towards deduction of compaction test report and Rs. 98,634/-

       under Schedule 7(c) on account of deduction for rectification,

       however, these amounts had already been released in the final bill

       as recorded in Measurement Book No. 184 at page 31.
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       Accordingly, these claims were found devoid of merit and have

       been rejected. So far as the claim under Schedule 7(b) amounting

       to Rs. 1,30,726/- on account of deduction for extension of time is

       concerned, the same was required to be adjusted by the Executive

       Engineer in the final bill, however, it appeared that such

       adjustment has not been carried out.

                   21. In Schedule No. 8, the contractor had claimed a sum

       of Rs. 8,93,966/- on account of refund of earnest money and

       security deposit. On behalf of the State, liability to pay the said

       amount was denied on the ground that the agreement was

       rescinded by the Executive Engineer vide Letter No. 601 dated

       24.06.2002, pursuant to which the security deposit was forfeited

       under Clause 3(a) of the conditions of contract. Prior to such

       rescission, notices were issued to the contractor by the Executive

       Engineer vide Letter Nos. 321 dated 08.04.2002, 384 dated

       07.05.2002, and 456 dated 20.05.2002. It is pertinent that under

       Clause 3(a) of the agreed conditions of contract, the authority to

       rescind the contract is exclusively vested in the Executive

       Engineer, and the said authority was exercised accordingly. Once

       the contractor had, under the terms of the contract, vested such

       authority in the Executive Engineer, he cannot subsequently

       challenge or question the exercise of that authority. Accordingly,
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       the arbitral tribunal found no merit in the claim, and the same has

       been rejected.

                   22. In Schedule 9(a), the contractor has claimed a sum

       of Rs. 25,53,000/- on account of idle machinery, labour, and

       maintenance of staff and camp at the site and at Ramgarh, and a

       further sum of Rs. 4,69,200/- under Schedule 9(b) towards

       expenses for maintaining camp, staff, and labour at the said

       locations. The State denied liability for the aforesaid claims. The

       contractor failed to produce any reliable evidence to establish that

       such losses were actually incurred on account of any failure on the

       part of the State to fulfill its contractual obligations. It has been

       held that while seeking extension of time for completion of the

       work, the contractor did not notify the Executive Engineer of any

       intention to claim compensation for delay during the extended

       period, as required under Sections 55 and 56 of the Indian Contract

       Act, 1872. In the absence of such notice, the contractor has not

       been found entitled to the said claims. Accordingly, in view of the

       above discussion, the claims under Schedule 9(a) and 9(b) have

       been rejected. Since all claims of the contractor have been

       rejected, therefore, there was no occasion to award any interest for

       any period.
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                   Findings Regarding States’ Claim

                   23. On behalf of the State, a claim of Rs. 7,41,328/- was

       made against the contractor on the basis of the final bill, being the

       excess amount received by the contractor up to the 15th running

       account bill. It is noted that payments made under running account

       bills are in the nature of advance payments, and the final bill was

       prepared on the basis of final measurements recorded after due

       notice to the contractor. Therefore, the contractor cannot evade

       liability to refund the said excess amount. However, the learned

       Arbitrator held that a sum of Rs. 1,30,726/- deducted on account of

       extension of time vide the 10th running account bill (MB No. 108,

       pages 61 and 91) is liable to be adjusted against the aforesaid

       amount, as the extension of time was duly granted by the Chief

       Engineer, WRD, Dehri vide Letter No. 249 dated 21.01.2000 up to

       31.03.2000, and further extensions were recommended by the

       Executive Engineer, Superintending Engineer, and Chief Engineer

       up to 31.03.2002 vide Letter Nos. 1081 dated 12.09.2001, 2467

       dated 28.09.2001, and 5620 dated 16.10.2001, respectively. The

       Executive Engineer had also directed the contractor to complete

       the work vide Letter Nos. 381 dated 08.04.2002, 384 dated

       07.05.2002, and 456 dated 20.05.2002. In such circumstances, the
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       deduction of Rs. 1,30,726/- on account of extension of time found

       not justified the same was liable to be adjusted.

                   24. Next, a sum of Rs. 6,68,594/- was claimed by the

       State for rectification of the ditch. The contractor denied liability

       on the ground that there was no provision in the contract making

       him responsible for such rectification. The Arbitrator held that the

       earth was excavated from the toe of the canal under the

       supervision of the State authorities and payment was made after

       measurement. The contractor failed to produce any written

       instruction from the Executive Engineer authorizing excavation

       from the toe of the canal; rather, the Sub-Divisional Officer, vide

       Letter No. 149 dated 11.09.1998, had directed the contractor to

       excavate earth beyond the prescribed distance from the toe of the

       canal. Further, Clause 4.01 of the technical specifications clearly

       provides that an undisturbed strip of 15 meters from the outer toe

       of the embankment must be maintained. The Executive Engineer,

       vide Letter No. 441 dated 28.03.1999, directed the contractor to

       restore the toe of the canal, which the contractor failed to comply

       with. Under Clause 16 of the conditions of contract, the contractor

       was obligated to make good such defects. Accordingly, the State

       was found entitled to recover Rs. 6,68,594/- from the contractor

       towards rectification of the ditch, as claimed.
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                    25. Finally, it was held that the contractor shall pay

       interest at the rate of 12% per annum on the aforesaid amount with

       effect from 13.09.2002, i.e., after fifteen days from Letter No. 892

       dated 29.08.2002 issued by the Executive Engineer, until the date

       of actual payment.

                    Opinion of the learned Commercial Court

                    26.   It appears from the records that the learned

       Additional District and Sessions Judge-X, Kaimur has decided the

       application under Section 34 of the Act of 1996. The learned court

       reproduced the pleadings of the parties and the opinion of the

       learned Arbitrator. Thereafter, the learned court took note of

       Section 34(2) of the Act of 1996 and the judgment of the Hon’ble

       Supreme Court in the case of Oil and Natural Gas Corporation

       Limited vs. Saw Pipes Limited reported in AIR 2003 SC 2629.

       In the concluding paragraph, the learned court recorded its views

       as under:-

                           “Considering    facts,   circumstances    and   evidence
               available on the record, the court is of the opinion that the
               petitioner has not succeeded to furnish any kind of proof as
               indicated by Hon’ble Supreme Court for setting aside the Arbitral
               Award in this case.
                           In view of the aforesaid discussions the petitioner is not
               entitled to get relief as sought for so this is hereby ORDERED that
               the instant suit is and the same be hereby dismissed on contest
               without cost.”
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                    Submissions on behalf of the Appellant

                    27. Before this Court, learned counsel for the appellant

      has submitted that the impugned award suffers from the vice of

      non-observance of the fundamental principles of law. The opposite

      party submitted its counterclaims for the first time in the last

      meeting of the arbitral proceeding held on 04.09.2006 when the

      arbitral proceeding stood concluded. In this regard, learned counsel

      has placed the order dated 04.09.2006 recorded by the sole

      arbitrator.

                    28. Learned counsel further submits that the sole

      arbitrator has suo-motu admitted the counterclaims on behalf of the

      opposite party/Department and passed the impugned award. This

      has been done despite the fact that the learned arbitrator has

      himself recorded that the counterclaims were denied in the

      proceeding       dated    20.10.2005,      20.06.2006   and   17.08.2006,

      however, it is submitted that these are contradictory statements in

      the impugned award as it is not even possible to deny a

      counterclaim which was submitted on 04.09.2006 only much

      before its submission, therefore, the proceeding recorded on

      20.10.2005, 20.06.2006 and 17.08.2006 are having no sanctity.
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                  29. Learned counsel submits that the learned sole

      arbitrator has awarded a sum of Rs. 7,41,328/- and Rs. 6,68,594/-

      with interest at the rate of 12% per annum from 13.09.2002 even as

      the impugned award has been passed on 29.09.2006 and the

      proceeding was started on 12.02.2005. The agreement was

      rescinded on 24.06.2002, therefore, there is no basis to award

      interest with effect from 13.09.2002. Learned counsel for the

      appellant submits that in this case the arbitrator did not lay down

      the procedures as required in terms of Section 24 of the Act of

      1996. On perusal of the impugned award itself it would appear that

      the learned arbitrator has decided the whole case on the basis of

      pleadings and the annexures attached to the pleadings. No

      procedure for proof of documents have been either laid down or

      followed in course of the entire proceeding. The documents were

      not exchanged for admission or denial by the respective parties.

      The author of the document did not prove the same, still the learned

      arbitrator has treated the annexures to the pleadings as evidences.

                  Submissions on behalf of the State

                  30. Mr. Anjani Kumar, learned AAG-4 has opposed the

      appeal. It is submitted that the learned arbitrator has not committed

      any error in the nature of violation of the principles of fundamental

      policy and principles of law. The parties exchanged their pleadings
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        21/32




      with annexures attached thereto and the arbitral proceeding has

      concluded on 04.09.2006.

                  31. Learned AAG-4 further submits that the learned court

      while considering the application of the present appellant under

      Section 34 of the Act of 1996 has refused to interfere with the

      award because none of the grounds stated under subsection (2) of

      Section 34 of the Act of 1996 was available to interfere with the

      impugned award.

                  Consideration

                  32. We have heard learned counsel for the appellant and

      learned AAG-4 for the State as also perused the records of the

      arbitration proceeding. It appears on perusal of the records that the

      claimant-appellant       appeared before the sole arbitrator      on

      20.10.2005 and submitted his written claims. The departmental

      representative received a copy of the claim of the appellant. The

      records were kept for 12.11.2005 for submission of response on

      behalf of the Executive Engineer, Jamania Pump, Canal Division,

      Ramgarh. On 12.11.2005, the Executive Engineer prayed for time

      and he was allowed time till 15.12.2005 to submit his written

      response. On 15.12.2005, again the Executive Engineer submitted a

      letter before the sole arbitrator whereby he informed the arbitrator

      that he had not received any written statement of fact from the
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        22/32




      department. Therefore, again prayer was made for time. Thereafter,

      records were fixed for 28.12.2005. From the order dated

      28.12.2005 it appears that on the claim of the appellant, the

      Executive Engineer submitted his written response and copy

      thereof was made available to the appellant whereafter the records

      were fixed for next sitting on 16.01.2006.

                  33. Thereafter, the claimant-petitioner filed a petition for

      some documents and information, the copy of this letter of the

      claimant was handed over to the Executive Engineer and the

      Executive Engineer was directed to make available the records of

      the claimant. Later on the claimant was made available some

      documents and he was asked to visit the office of the Executive

      Engineer to peruse the rest of the documents.

                  34. Thereafter the records remained pending seeking

      extension of time from the High Court because the arbitral

      proceeding could not be concluded within the period prescribed by

      the High Court in it’s order passed in the writ application

      whereunder the arbitration proceeding was required to be

      concluded by 26.03.2006. The extension of time was granted by the

      High Court which is recorded in the order dated 18.05.2006. The

      next sitting of the arbitral tribunal was fixed on 05.06.2006.

      Thereafter the records were further fixed for making available
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        23/32




      certain documents to the claimant. The records of the arbitral

      tribunal would show that both the parties were asked to submit

      their stand before the learned arbitrator. On 17.08.2006, both the

      parties were present and they placed their stand before the learned

      arbitrator. The records were fixed for 04.09.2006, on the said date

      the then Executive Engineer appeared and submitted his written

      stand before the learned arbitrator, copies whereof were served

      upon the claimant. On that very day, the parties were directed to

      make available the required amount for purchase of non-judicial

      stamp papers. The proceeding, therefore, concluded on 04.09.2006.

                  35. At this stage, this Court would briefly take note of the

      statutory provision under the Act of 1996 provided under Chapter

      V which deals with the conduct of arbitral proceedings. Section 23

      and 24 of the Act of 1996 are being reproduced hereunder:-

               “23. Statements of claim and defence.—(1) Within the period of
               time agreed upon by the parties or determined by the arbitral
               tribunal, the claimant shall state the facts supporting his claim, the
               points at issue and the relief or remedy sought, and the respondent
               shall state his defence in respect of these particulars, unless the
               parties have otherwise agreed as to the required elements of those
               statements.
               (2) The parties may submit with their statements all documents
               they consider to be relevant or may add a reference to the
               documents or other evidence they will submit.
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
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               1
                 [(2A) The respondent, in support of his case, may also submit a
               counterclaim or plead a set-off, which shall be adjudicated upon by
               the arbitral tribunal, if such counterclaim or set-off falls within the
               scope of the arbitration agreement.]
               (3) Unless otherwise agreed by the parties, either party may amend
               or supplement his claim or defence during the course of the arbitral
               proceedings, unless the arbitral tribunal considers it inappropriate
               to allow the amendment or supplement having regard to the delay
               in making it.
               2
                 [(4) The statement of claim and defence under this section shall be
               completed within a period of six months from the date the
               arbitrator or all the arbitrators, as the case may be, received notice,
               in writing of their appointment.]
               24. Hearings and written proceedings.—(1) Unless otherwise
               agreed by the parties, the arbitral tribunal shall decide whether to
               hold oral hearings for the presentation of evidence or for oral
               argument, or whether the proceedings shall be conducted on the
               basis of documents and other materials:
               Provided that the arbitral tribunal shall hold oral hearings, at an
               appropriate stage of the proceedings, on a request by a party, unless
               the parties have agreed that no oral hearing shall be held:
               1
                 [Provided further that the arbitral tribunal shall, as far as possible,
               hold oral hearings for the presentation of evidence or for oral
               argument on day-to-day basis, and not grant any adjournments
               unless sufficient cause is made out, and may impose costs including
               exemplary costs on the party seeking adjournment without any
               sufficient cause.]
               (2) The parties shall be given sufficient advance notice of any
               hearing and of any meeting of the arbitral tribunal for the purposes
               of inspection of documents, goods or other property.
               (3) All statements, documents or other information supplied to, or
               applications made to the arbitral tribunal by one party shall be
               communicated to the other party, and any expert report or
               evidentiary document on which the arbitral tribunal may rely in
               making its decision shall be communicated to the parties.”




   1. Inserted by Act 3 of 2016, S. 11 (w.r.e.f. 23-10-2015).
   2. Inserted by Act 33 of 20019, S. 5 (w.e.f. 30-8-2019).
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        25/32




                  36. It is evident that subsection (2A) and subsection (4)

      have been inserted in Section 23 vide Act No. 3 of 2016 and Act

      No. 33 of 2019 respectively, therefore, those provisions were not

      available at the time the present arbitration proceeding was being

      conducted. Similarly the second proviso to subsection (1) of

      Section 24 has been inserted vide Act No. 3 of 2016 with effect

      from 23.10.2015, therefore, we would not be guided by the newly

      inserted provisions. It is evident on a bare reading of Section 23

      and Section 24 as existed at the relevant time that while filing of

      the statement of claims and the statement of defence, the parties

      may submit with their statements all documents they consider to be

      relevant. According to Section 24, unless otherwise agreed by the

      parties, the arbitral tribunal has to decide whether to hold oral

      hearings for the presentation of the evidence or for oral argument

      or whether the proceeding shall be conducted on the basis of

      documents and other materials.

                  37. In the present case, it is evident from the various

      orders passed by the learned arbitrator that at no stage of the

      proceeding, the learned Arbitrator decided as to whether to hold

      oral hearings for the presentation of evidence or for oral argument.

      The pleadings in form of statement of claims and statement of

      defence cannot take place of the oral or documentary evidence. The
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        26/32




      minimum thing which was required to be done was to call upon the

      parties to admit or deny the documents submitted by both of them.

      If the existence of any document is admitted and the contents of the

      same is also admitted then that document would have been taken as

      a piece of evidence. There may be a case where existence of a

      document is admitted and by virtue of that the document may be

      marked an exhibit, still the contents of the document may be denied

      and in that case the party who wants to rely upon the contents of

      the document would be required to prove the same by bringing the

      competent witness to depose on those facts. Such a witness should

      be liable to be cross-examined by either side. Unless the documents

      are admitted or denied and their contents are proved, the learned

      arbitrator could not have considered that as a piece of evidence.

      Even as strict rules of evidence would not apply but these are to be

      followed as fundamental policy of law. It is also in consonance

      with the principles of natural justice.

                  38. On perusal of the records of the learned arbitral

      tribunal it would appear that on 04.09.2006, which was the last date

      of the sitting of the learned arbitral tribunal, the Executive Engineer

      Jamania Pump Canal Division, Ramgarh (Kaimur) submitted his

      written response vide a letter bearing number - KAM Bhabua-01
   Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                            27/32




           dated 04.09.2006 which we reproduce hereunder for a ready

           reference:-

                            “OFFICE OF THE EXECUTIVE ENGINEER
                      ZAMANIA PUMP CANAL DIVISION RAMGARH (KAIMUR)
To,
            The Sole Arbitrator-cum-Superintending Engineer
            Water Wayes Circle Bhabhua (Kaimur).


Sub:-       Arbitration proceeding under Agreement No. 2 F2/98-99 for Earth work in
            Zamania Pump Main Canal from 2.24 K.M. to 4.569 K.M. between Narayan
            Prasad and the State of Bihar


Sir,

                  In obedience of your order I humbly put up the reply clause wise of
       letter No. Nil dated 17.8.06 submitted by Sri Narayan Prasad, Contractor on the
       basis of records available in the office of the Executive Engineer, Zamania
       Pump Canal Division, Ramgarh as follows for your kind perusal and
       consideration. Moreover the claims submitted by the agency one more or less
       same as submitted by him vide his letter No. Nil dated 20.6.06 which was
       replied by this office letter No. 523 dated 13.7.06. The agency is repeating the
       same arguments repeatedly in each arbitration proceeding in different languages
       just to make screw and so stretching the arbitration proceeding, which were
       already replied earlier on the basis of the records available in this office. The
       agency has been paid altogether Rs. 83,79,311/- (Rupees Eighty three lacs
       seventy nine thousand three hundred eleven) but at the time of payment he had
       not whispered a word or objected any matter, rather after six years he is
       searching mistakes and lacuna in graph sheet and M.B’s whose photocopies
       have been given to him by your order. This is for your kind information and so
       the replies are as follows:-
       Cl. 1                 :- No comments
       Cl. 2 to 10           :- It is matter of records which needs no comment.
       Cl. 11                :- No comment.
        Cl. 12                :- Nothing is mentioned in the concerned agreement
                              regarding acquirement of temporary land for execution of
                              the work.
        Cl. 13                :- Same as replied in Cl. 5 (letter No. 523 dt. 13.7.06)
        Cl. 14                :- Same as replied in Cl. 10 & 11 (letter No. 523 dt.
                              13.7.06)
        Cl. 15                :- Payment of crop compensation is being done
                              departmently through sanctioned estimate by the competent
                              authority if so cases occur in the field as per necessity.
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        28/32




                            Nothing is found in the record available in the office of
                       the Executive Engineer, Zamania Pump Canal Division
                       Ramgarh stating the necessity for payment of crop
                       compensation related to this work either in shape of letter of
                       concerned J.E., A.E., E.E or in shape of estimate proving
                       the falseness of the statement of the agency.
                              Also nothing is mentioned regarding crop
                       compensation in the concerned agreement.
  Cl. 16 to 19          Same as replied in Cl. 15 (Letter No. 523 dt. 13.7.06)
  Cl. 20 to 22         Same as replied in Cl. 15 & 16 (Letter No. 523 dt. 13.7.06)
  Cl. 23               Same as replied in Cl. 21 (Letter No. 523 dt. 13.7.06) and the
                       matter of payment for machinery and establishment sitting
                       idle is out of agreement executed.
  Cl. 24 to 25         Same as replied in Cl. 20, 22 & 23 (Letter No. 523 dt.
                       13.7.06)
  Cl. 26 to 27         It is matter of records which needs no comment.
  Cl. 28               As explained in cl. 24 & 25 the statement of the agency about
                       his presence is contradictory as per his letter no. Nil dated.
                       21.10.02 as annexed (7) previously.
  Cl. 29               As explained in earlier clauses No. 24 & 25. The records
                       available shows that final measurement have been taken on
                       scheduled dates fixed giving the three notices to the agency to
                       start the work or to be present at the time of taking of final
                       measurement at site as per statement submitted by then
                       Executive Engineer, Zamania Pump Canal Division Ramgarh
                       vide his letter No. 1 Camp Bhabhua dated 17.8.06
  Cl. 30               Same as Cl. No. 13
  Cl. 31               It is matter of records which needs no comment.
  Cl. 32               No comment
  Cl. 33(i)            In obedience of the direction of learned Sole Arbitrator all
                       available graph sheets, Level Books, Photostate copies of
                       M.B. of all bills numbering 1 to 15 related to this work have
                       already been given to the agency earlier the related
                       information have been submitted to your honour vide letter
                       No. 423 dated 31.5.06 of this office.
                              No rough prepared Level Book A/c bill wise is
                       presently available in this office but the Level Book of final
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                         29/32




                       measurement and pre level are available whose photostate
                       copy have already been given to the agency. Levels taken at
                       the time of preparing running A/c bills (1 to 15) have already
                       been entered in M.B. which in more authenticated record than
                       preparation of rough Level Book of respective A/c bill.
                              As per usual practice, designed cross-section is plotted
                       at the interval of 30 M of the alignment, and for the running
                       A/c bill the cross-sectional area of the executed earth work is
                       calculated either geometrically or scaled on the graph sheet
                       corresponding to the each level achieved in the working
                       period. So it is not necessary to plot graph for the payment of
                       each account bill separately. In this case at the interval of 30
                       M altogether 78 No. of cross sections have been drawn in 2.24
                       K.M. to 4.569 K.M. reach.
  Cl. 33(ii)           Not available till date.
  Cl. 34(i)            same as replied in Cl. 17(Letter No. 523 dat. 13.7.06) and
                       hence the claim is denied.


  Cl. 34(ii),
  (iii) & (iv)          Matter of records and replied in Cl. 17(Letter No. 523 dated
                       13.7.06) and the agency was asked to be present at the time of
                       taking measurement failing which the measurements taken by
                       the department will be presumed to be accepted as explained
                       in Cl. 2 ([k) of Letter No. 1 dated 17.8.06 submitted by then
                       Executive Engineer, Zamania Pump Canal Division Ramgarh
                       and hence claim is technically denied.
  Cl. 36 to 46         As already explained earlier in Letter No. 523 dt. 13.7.06 and
                       its claims 1 to 39 (vii).
                                       And so, the agency is not entitled and hence all
                       the claims are fully denied to get any amount rather the State
                       of Bihar is entitled to recover according to final bill of the
                       concerned work and for the rectification, a sum of
                       Rs.14,09,922.00 with interest thereon in accordance with law
                       from the contractor Sri Narayan Prasad for which a Award
            Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                                              30/32




                                         may be passed by learned Sole Arbitrator in favour of the
                                         State of Bihar.
                                                                                    Yours faithfully,
                                                                                    Signature/-
                                                                                    Executive Engineer
                                                                                    Zamania Pump Canal Dvn.
                                                                                    Ramgarh (Kaimur)



                                                     “i=kad&&dsEi HkHkqvk] 01


                      çs"kd]
                                        bZå ujs'k çlkn]
                                        dk;Zikyd vfHk;ark]
                                        ;kstuk ,oa eksfuVfjax çeaMy & 16]
                                        ty lalk/ku foHkkx] iVuk A
                                        rRdkyhu dk;Zikyd vfHk;ark]
                                        tekfu;k¡ iEi ugj çeaMy] jkex<+ A

lsok esa]
            ,dy fookpd&lg& v/kh{k.k vfHk;ark]
            tyiFk vapy] HkHkqvk A                                                    fnukad 4&09&2006
fo"k;       %&       Jh ukjk;.k çlkn] laosnd ,oa dk;Zikyd vfHk;ark] tekfu;k¡ iai ugj çeaMy]
            jkex<+ ds chp fookpu dh dk;Zokgh esa mifLFkr gksus ds laca/k esa A

çlax        %&       ,dy fookpd&lg v/kh{k.k vfHk;ark] tyiFk vapy] HkHkwvk dk i=kad
            1236 fnukad 28-7-2006
egk'k;]

          mijksä fo"k; ,oa çlax ds laca/k esa vkt fnukad 4-9-06 dks fookpu dh cSBd esa funs'kkuqlkj mifLFkr gqvk A
fookpu ds Øe esa eq>s fuEu fcUnq ij viuk i{k j[kus gsrq funsZ'k fn;k x;k gS %&

1- fo"k;ka/khu fdåehå esa Vks ls lVs dkVh xbZ feêh ds laca/k esa
  mi;qZä lanHkZ esa çeaMyh; dk;kZy; dh lacaf/kr lafpdk ds voyksdu ls fuEukafdr oLrq fLFkfr Li"V gksrh gS %&
  ¼d½ esjs }kjk tekfu;k¡ iEi ugj çeaMy] jkex<+ dk çHkkj ysrs gh dk;ZLFky dk fujh{k.k fd;k x;k ftlds nkSjku ik;k x;k
fd 2-24 fd0eh0 ls 4-569 fdåehå rd fuekZ.kk/khu ugj ds djhc Vks ls lVs laosndksa }kjk feêh dkVh xbZ gS] tks ,djkjukek
dh fof'kf"V;ksa ds çfrdwy gS A vr% lacaf/kr lgk;d vfHk;Urkvksa dks 0-35 fd0eh0 ls 4-569 fd0eh0 rd fuekZ.kkf/ku ugj ds
nksuks rjQ dkVh xbZ feVVh dks ,uå,lå,yå rd ;Fkk'kh?kz Hkjus dh fn'kk esa Bksl dkjZokbZ djus dk funs'k esjs i=kad 1631
fnukad 31-12-98 }kjk fn;k x;k A
  ¼[k½ iqu% esjs i=kad 441 fnukad 28-3-99 }kjk Vks ls lVs iwoZ esa dkVh xbZ [kUrk dks feVVh ls Hkjdj dEiSD'ku djus dk
funs'k lacaf/kr lacsnd dks fn;k x;k Fkk ,oa bldh çfr lacaf/kr vcj çeaMy inkf/kdkjh ,oa v/kh{k.k vfHk;Urk dks vko';d
dkjZokbZ gsrq vkxzg fd;k x;k Fkk A
  ¼x½ bl Øe esa laosnd ds i= la[;k 'kwU; fnukad 5-4-99 ds lanHkZ esa esjs }kjk ¼i=kad 783 fnukad 10-6-99½ Vks ls lVs [kUrk
ds HkjkbZ ds laca/k esa laosnd }kjk ;FkkdfFkr mPpkf/kdkjh ds vkns'k dh çfr dh ek¡x dh xbZ ijUrq laosnd }kjk mPpkf/kdkjh ds
}kjk fn, x, ,sls fdlh funs'k dh çfr miyC/k ugha djkbZ xbZ A
  ;g vkids lwpukFkZ ,oa vko';d dkjZokbZ gsrq çsf"kr A

                                                                                         fo'oklHkktu
                                                                                          g0@& 4-9-06
                                                                                         ¼ujs'k çlkn½
                                                                                         dk;Zikyd vfHk;ark”
Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                        31/32




                  39. Prior to the filing of the response dated 04.09.2006,

      the Executive Engineer, Jamania Pump, Canal Division, Ramgarh

      had submitted a written letter bearing number 523 dated

      13.07.2006. We have noticed that these response in form of letters

      submitted by the Executive Engineer were not even supported by

      any affidavit.

                  40. In our considered opinion, the learned sole arbitrator

      has not followed the principles of natural justice and the findings

      recorded by the learned arbitrator are not based on evidences rather

      those are based on the pleadings alone. Since the learned arbitrator

      has not followed the fundamental principles of law in the matter of

      admissibility of evidence and appreciation thereof, we are of the

      considered opinion that the impugned order suffers from the vice of

      non-observance of the principles of natural justice and the

      fundamental policy of the Indian law. The procedure adopted by

      the learned arbitral tribunal is in conflict with the most basic

      notions of justice.

                  41. We, therefore, find that the learned court while

      considering the application under Section 34 of the Act of 1996 has

      completely missed out on these aspects of the matter and dismissed

      the title suit.
             Patna High Court COMMERCIAL APP No.1 of 2024 dt.30-03-2026
                                                     32/32




                               42. In result, we set aside the impugned order and the

                    award of the learned arbitrator.

                               43. This appeal is allowed, however, there will be no

                    order as to cost.



                                           (Rajeev Ranjan Prasad, J)


                                              ( Soni Shrivastava, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date         10.04.2026
Transmission Date


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