Anubha Rawat Choudhary, J.

1. Heard learned counsel for the parties.

2. This appeal is directed against the judgment/order dated 25.03.2009 passed by Sub Judge I, Giridih in Misc. (Arbitration) Suit No. 11 of 2007 whereby the learned Sub Judge has rejected the application filed on behalf of the petitioners/appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) upholding the Award dated 08.09.2007 passed by the sole Arbitrator in Arbitration Case No. 35/04.

3. After the conclusion of arguments both the parties have filed written submissions.

4. The background of the case as mentioned in the Written submission filed on behalf of the appellants is as follows.

a. The respondent was allotted the work of widening Dumari-Giridih Road from 0 KM to 35 KM under agreement no. 11 F2/2001-02 executed between the respondent and the Executive Engineer, Road Construction Division, Giridih on 10.05.2001. The work was originally to be completed within 18 months from the date of agreement and the period of completion was later on extended up to 31.03.2003. The final measurement of work done was taken and on the basis of which final bill was prepared for Rs. 22,99,703/-. On 12.08.2004, the respondent forwarded a claim of Rs. 4,91,000/-to the Executive Engineer, which was duly forwarded to the Superintending Engineer, for some extra work done, but the same was not paid. The Respondent preferred a claim before the departmental authorities but the claim was not settled. Therefore, the claimant filed an Arbitration application before the High Court under Section 11(6) of the Act of 1996. The matter was heard on 21.06.2006 and the Hon'ble Court appointed sole arbitrator for entering into the reference and to pass an award within four months. On 25.07.2006, the copy of the order of the Hon'ble Court was received by the Sole Arbitrator. On 07.10.2006, the claimant filed a claim petition before the Sole Arbitrator. The Respondent/Opposite Party filed their written statement/counter affidavit. Rejoinder to the written statement was filed by the Claimant. On 08.09.2007, the Award was passed by the Sole Arbitrator in Arb. Case No. 35/2004. A petition under Section 34 of the Act of 1996 was preferred by the appellants which was dismissed vide order dated 25.03.2009.

5. The claims made and allowed by the learned arbitrator are as follows:-

6. The appellants duly appeared before the learned Arbitrator and contested the claim. It was the case of the appellants that the claimant had completed only 50% of the total work even after grant of five months' extra time. It was their case that the final measurement was taken on 31.03.2003 as per the work done by the contractor till 31.03.2003.

7. The appellants had filed counter claim and it was decided as under by the learned arbitrator:-

8. Thus, the claimant has been found entitled for-

Rs. 40,38,084.00-Rs. 1,38,294.00 = Rs. 38,99,790.00 with Interest @ 8 per cent per annum from the date of Award till payment.

9. The appellants filed petition for setting aside the award under section 34 of the Arbitration and Conciliation Act, 1996 which was dismissed by the impugned judgement.

10. The appellants are aggrieved by rejection of their counter claim. After conclusion of arguments the appellants have filed written submissions from the perusal of which it is apparent that they are aggrieved with rejection of counter claim.

11. The written submissions of the appellants on merits are as follows:-

“Counter claim:-

A. Findings of the Ld. Arbitrator in respect of 140 MT of bitumen is perverse as the same has been admitted by the claimant but denied by the Arbitrator.

As per agreement, the bitumen was to be supplied by the department to the contractor and the price of the bitumen to be recovered from the contractor was Rs. 8032 per MT. For unused quantity of bitumen, penalty equal to the amount of the unused bitumen was to be recovered @ Rs. 8032 MT. Annexure-8 Page 103: Written Submissions filed by the Department before the Ld. Arbitrator: According to the Department, 840.364 MT bitumen was issued against hand receipt as detailed below:

Date of H/R	Quantity (M.T.)
20.11.2001	10.880
13.11.2001	10.880
13.03.2002	48.00
31.03.2002	4.725
05.04.2002	165.00
25.05.2002	140.00
15.06.2002	80.00
30.08.2002	108.80
01.08.2002	65.539
30.09.2002	45.200
17.09.2002	79.00
10.03.2003	52.00
20.03.2003	30.240
Total	840.364

"Counter claim:-

A. Findings of the Ld. Arbitrator in respect of 140 MT of bitumen is perverse as the same has been admitted by the claimant but denied by the Arbitrator.

As per agreement, the bitumen was to be supplied by the department to the contractor and the price of the bitumen to be recovered from the contractor was Rs. 8032 per MT. For unused quantity of bitumen, penalty equal to the amount of the unused bitumen was to be recovered @ Rs. 8032 MT.

Annexure-8 Page 103: Written Submissions filed by the Department before the Ld. Arbitrator: According to the Department, 840.364 MT bitumen was issued against hand receipt as detailed below:

If Para-38 and 39 of the award and para 23 of the written notes of arguments filed by the claimant are taken together, then following facts are clear and makes the findings of the Arbitrator perverse:

(a) In para-38 of the award, Arbitrator has recorded as finding that 700.364 MT bitumen was issued by the department to the claimant.

(b) In para-39, while considering 4 hand receipts, the Arbitrator has observed that receipt Exhibit R-13/6 of 140 MT bitumen appears to be in another handwriting and this receipt creates a doubt. This quantity of 140 MT was not admitted by the Arbitrator.

(c) However, in para 23 of the written argument, the claimant has admitted Hand receipt dated 25.05.2002 for 140 MT of bitumen.

(d) Even if we don't go into the other findings recorded in para 39 of the award regarding other receipts, the hand receipt R-13/6 for 140 MT has been admitted by the Claimant in para-23 of the Written Submission filed before the arbitrator.

(e) Thus, the 140 MT bitumen though admitted by the Claimant but has been disputed by the Arbitrator. There is only one entry of 140 MT bitumen in the counter claim of the Department. In the table of bitumen in para-23 of the written notes of arguments of the Claimant also, there is only one hand receipt of 140 MT bitumen.

Thus without looking into anything else, the quantity of the bitumen issued to the claimant comes to :

As per Para-38 of Award		700.364 MT
Para-39 of the award	140 MT (Exhibit R- 13/6) disputed by Arbitrator, while considering 4 disputed hand receipts	140 MT Admitted by the Claimant in para 23 of written notes of arguments, there is only hand receipt of 140 MT i.e. Exhibit- R-13/6
Total bitumen issued to the claimant		840.364 MT

Thus, the stand of the Department, that 840.364 MT bitumen was issued to the Contractor is correct and findings of the learned Arbitrator are perverse and is contrary to the admission of the Claimant regarding 140 MT of bitumen.

B. Unused Quantity of Bitumen From the above it is clear that total 840.364 MT bitumen was issued to the Claimant. Out of 840.364 MT of bitumen, 738.128 MT was consumed and unused quantity of bitumen comes to 102.237 MT. (Ref. para 36 of the award and written submissions of the appellant before Ld. Arbitrator)

C. Claim for 302.197 MT bitumen and penalty for 102.237 MT unused quantity of bitumen wrongly rejected by the Ld. Arbitrator. It is clear from the above that the finding in para-39 of the award regarding 140 MT of bitumen is against the admission of the Claimant made in para-23 of the written notes of arguments at page 115 of the appeal.

If 140 MT is added in the quantity admitted by the Ld. Arbitrator in para-38 of the award i.e. 700.364 MT, total quantity of bitumen issued come to Rs. 840.364 MT. Vide Para-52 of the award, the claim for the cost of bitumen and penalty has been rejected on the basis of the perverse finding regarding quantity of bitumen issued to the claimant as mentioned above.

The Ld. Arbitrator has observed that unused quantity of 102.237 MT could not be established. Whereas, the appellant has shown that only one H/R of 140 MT (Exhibit R-13/6) which has been disputed by the Ld. Arbitrator but admitted by the Claimant fully supports the claim of the Department.

Thus, the Department is entitled for the following amount. :

Cost of 302.179 MT @ 8032 per MT	24,27,253.00
Penalty for unused quantity of 102.237 MT @ 8032	8,21,219.00
Total	32,48,472.00

D. 10% penalty for delay or non-completion of work

From the list of dates, it would appear that in spite of extension of time granted by the department, the claimant could execute only 50% of the total awarded work.

The department closed the agreement and levied penalty @ 10% of the value of work in terms of specific clause in the agreement i.e. Rs. 32,34,028/-

The Ld. Arbitrator without any evidence recorded finding in para-52 of the award that since the security amount and bank guarantee amount was returned without any condition and thus it appears that both the parties have contributed in the negligence and thus they cannot take the benefit of the negligence of the other.

E. Interest be awarded to the Appellant.

Since, the counter claims were rejected by the Ld. Arbitrator on the basis of perverse finding ignoring the admission of the claimant, the appellant is not only entitled for the counter claim but is also entitled for the interest @ 18% per annum from the date of award till payment."

12. In the written notes of arguments, it has been stated that Section 33 of the Arbitration and Conciliation Act, 1996 has no applicability to the facts and circumstances of this case. The scope of section 33 of the Act of 1996 is different and limited to the extent of correcting any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award. The word "similar nature" occurring in section 33(1) (a) makes the scope of section 33 limited to the errors as mentioned therein.

13. It has been submitted that in the judgements passed by the Hon'ble Supreme Court in Associate Builders v. DDA (2015) 3 SCC 49, [LQ/SC/2014/1247] NHAI v. Progressive MVR (2018) 14 SCC 688 [LQ/SC/2018/277] and Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., it has been held that the award passed by the Arbitral Tribunal can be interfered with in the proceedings under Sections 34 and 37 of the Arbitration Act only in a case where the finding is perverse and/or contrary to the evidence and/or the same is against the public policy. It has been submitted that since, the award rendered by the Ld. Arbitrator is perverse as it has ignored the specific admission made by the claimant, the award may be challenged under Section 34/37 of the Act of 1996 as has been done in this case.

Arguments of the respondent (claimant)

14. The claimant has also filed a written submissions after conclusion of the arguments.

15. The summary of the arguments of the claimant is as under:-

a. The Appellant on the other hand filed counter-claim for a total amount of Rs. 1,07,91,894/-under different head and this court is concerned with following counter claims considering the arguments of the appellants:

i. An amount of Rs. 24,27,253/-against 302.179 MT of bitumen which has not been recovered from the Respondent;

ii. An amount of Rs. 8,21,129/-against 102.27 MT of unused and unreturned bitumen;

iii. An amount of Rs. 32,34,028/-against Penalty @10% on the total cost for delay;

b. The Appellant admitted the claim of Rs. 22,99,703/-against the final bill and an amount of Rs. 17,27,581/-out of Rs. 18,00,000/-against extra work/additional work and submitted before the Ld. Arbitrator that the claimant is not entitled for any amount as the entire amount is adjustable in the price of bitumen supplied to it and further for bitumen which was neither consumed in the work nor returned to the Appellant. The Appellant also submitted that after adjustment of the price, it would be entitled for return of some amount which it had claimed in their counter claim.

c. The learned arbitrator recorded that the question of claim made by both the parties regarding supply and consumption of bitumen and balance if any are the only subject matter for consideration.

d. The Respondent has claimed that only 564.645 M.T. of Bitumen was issued to him for the entire work done. Whereas the Appellants have stated that actually 864.364 M.T. of Bitumen was issued. The Appellants had produced photocopies of 16 hand receipts showing supply of Bitumen to the claimant.

e. The claimant had prayed for the original of the hand receipts filed by the Appellants, which were called for and returned after perusal in presence of both the parties during hearing of the proceedings.

f. The Arbitrator rightly held that on the perusal of the hand receipts, the issuance of hand receipts annexed as R-13/5, R-13/6, R-13/12 and R-13/13 have given rise to reasonable doubts. All 4 hand receipts were rejected by citing reasons.

g. The Ld. Arbitrator thus, came to the conclusion regarding the issuance of bitumen on perusal of the hand receipts that:

"There is difference in the figure of Bitumen issued in the case of the Respondent themselves. They say that 840.364 M.T. of Bitumen was issued whereas they produced the receipts of 1129.564 M.T. of Bitumen. This also raises a clear doubt in the assertion of the Respondents. Shri Ram Nihora Prasad Singh, the learned Executive Engineer who argued the case submitted that he was not posted when the Bitumen was issued and work was done. He has submitted everything on the basis of documents available. I therefore feel that these discrepancies in the account of the Bitumen requires investigation. The learned Executive Engineer should therefore enquire in to the matter and see whether there is any misappropriation. Be as it may the Respondents have themselves submitted before me that 738.128 M.T. of bitumen appears to have been consumed for proper finishing of the amount of work done. It appears that 700.364 M.T. of Bitumen was actually received by the Claimant. Even if it is admitted for the sake of argument that 38 M.T. of bitumen approximately more was issued, it can not be assumed that any amount of bitumen was not returned by the claimant the price of which is recoverable by the Respondents."

h. On the basis of the finding of the Ld. Arbitrator, it came to the Conclusion that the Claimant was entitled to the amount admitted by the Respondent against the final bill and extra work done beyond the agreement and the Appellant was entitled to it's admitted counter-claim against Royalty, Income Tax and Sales Tax.

i. That the Appellant aggrieved by the rejection of its counterclaim had filed an appeal under Section 34 of the Arbitration & Conciliation Act, 1996 before the Ld. Court below.

j. That the Appellant has claimed that the Respondent has themselves admitted the issuance of hand receipts annexed as R-13/5, R-13/6, R-13/12 and R-13/13 in the written submissions submitted by the Respondent before the Ld. Arbitrator which is annexed as Annexure-9 to the present appeal. It is being submitted here that Annexure R-13/5, R-13/12 and R-13/13 have been specifically denied in the chart @Pg 115. However, the issuance of 140 MT issued vide Annexure-R-13/16 has been admitted by the Respondent in their written submission.

k. It is submitted here that the appellants, in the grounds taken by the them in their Application under Section 34 of the Arbitration & Conciliation Act, 1996, have vaguely taken the ground (v) that the learned Forum has gravely erred in holding that hand receipts for supply of 429.200 M. T. by the State to the contractor in absence of specific denial of signature of the contractor on self-hand receipts is wrong as there is denial of the hand receipts specifically and no ground has been taken by the Appellant specifically that the Ld. Arbitrator has wrongly perused the original hand receipts. It would be a different scenario, if the original receipts were left in the records and if the perusal of the original were challenged and the original were then filed in the Ld. Court below to prove its case.

l. The Ld. Court below was pleased to reject the application vide order dated 25.03.2009 by citing reasons based on the grounds raised by the parties.

m. This Hon'ble court has no power to reappraise the evidence and no perversity as such has been demonstrated by the Appellants in the finding of the Ld. Arbitrator. Judgment relied:

"i. Associate Builders v. DDA: (2015) 3 SCC 49 [LQ/SC/2014/1247] (Para 52)

ii. Maharashtra State Electricity Distribution Company Limited v. M/S. Datar Switchgear Ltd. & Ors. (2018) 3 SCC 133 (Para 51)

iii. Ssangyong Engineering and Construction Company Ltd. v. National Highway Authority of India (2019) 15 SCC 131 (Para 24)"

n. That the Hon'ble Court has raised a query if the Appellant had a remedy under Section 33 of the Arbitration and Conciliation Act, 1996, in respect of which it is being submitted by the Respondent that no remedy would be available to the Appellant under Section 33 as there is no typographical/arithmetic/clerical error in the impugned award passed by the Ld. Arbitrator in which the numerical figures have been arrived based on logic and reasoning. It is being submitted that the scope under Section 33 is very limited as held by the Hon'ble Supreme Court in Gyan Prakash Arya v. Titan Industries Ltd. (2023) 1 SCC 153 [] wherein it has been specifically held that "Only in a case of arithmetical and/or clerical error, the award can be modified and such errors only can be corrected."

o. In view of the above submissions made, it is prayed that the Arbitration Appeal be dismissed as the Appellants have not made any case for setting aside the Impugned Judgment.

Findings of this Court

16. The claimant was allotted the work of widening of road for which an agreement was executed on 10.05.2001 for total value of Rs. 3,23,40,284.00. The claimant deposited security amount of Rs. 6,27,000.00 at the time of agreement. The work was to be completed within 18 months from the date of the agreement. The completion period was extended upto 31.03.2003 on the ground of failure of the department to provide the work site in time. Final measurement was done on 31.03.2003 and on the basis of which, final bill was prepared for an amount of Rs. 22,99,703. It was further claim of the claimant that they had completed some items of extra work for which bill was raised but not paid. There was further claim of extra work on account of carriage of stone chips. Admittedly, the work was partly done by the claimant.

17. As per the award, with regard to Claim No. 1, the amount of Rs. 22,99,703.00 stood admitted by the appellants and an amount of Rs. 17,27,581/-on account of extra work also stood admitted. However, the specific case of the appellants was that they were entitled to counter claim primarily on account of unconsumed bitumen which was not returned by the claimant to the extent of 102.237 MT with penalty and value of 302.179 MT of bitumen was to be adjusted against the final bill amount and consequently it was the appellants who would be entitled for differential amount. Counter claim was also made on account of non-completion of work. Further counter claim was made on account of royalty, income tax and sales-tax total being Rs. 1,38,294/-. The details of the claim, counter claim and the extent to which it was allowed/disallowed by the learned arbitrator has been summarized in a tabular form in above paragraphs.

18. The appellants had stated before the learned arbitrator that total bitumen consumed for the work done under the agreement upto final bill was 738.128 MT. Their further case was that 840.364 MT of bitumen was received by the claimant and therefore, unused and unreturned quantity of bitumen was (840.364-738.128) 102.237 MT. The appellants claimed cost of 102.237 MT at penal rate.

19. Further, as per the appellants, 840.364 MT of bitumen was issued to the claimant; cost of bitumen recovered upto 11th bill was for 538.185 MT; therefore, appellants claimed adjustment of cost of bitumen (840.364-538.184) of 302.179 MT to be adjusted from the final bill of the petitioner (respondent herein). Apart from the aforesaid, the appellants admitted extra work of Rs. 17,27,581/-but sought adjustment against the counter claim.

20. In paragraph 35 of the award, it has been recorded that the respondents (appellants herein) had produced 16 hand receipts showing supply of bitumen to the extent of 1068.466 MT whereas the admitted quantity of bitumen was 564.599 MT i.e. 502.867 MT was disputed. The claimant had further stated that an amount of Rs. 302.179 MT of bitumen was shown in 12th bill but was not shown as issued in any measurement book. The learned arbitrator was of the view that it was for the respondents (appellants herein) to prove the supply of bitumen to establish their case. It has also been recorded that 12th bill does not contain fact of issuance of bitumen. It contains abstract consumption for the whole work in which quantity of 302.179 MT has been found to be inserted as consumed without issuing in the measurement book.

21. The specific case of the respondents (appellants herein), as recorded in paragraph 36 of the award was that the respondents had submitted papers to show that out of 840.364 MT bitumen, the contractor had consumed only 738.128 MT for the work and therefore, there was an excess bitumen supply of 102.237 MT which was neither consumed nor returned and price of which was recoverable with penalty.

22. The learned arbitrator had recorded that there were altogether 7 disputed receipts which were produced out of them, 3 disputed receipts i.e. R 13/2, R 13/8 and R 13/14 could not be disputed and were found to be genuine and thus, recorded that the claimant was issued more bitumen than the amount which stood admitted by the claimant. The learned Arbitrator added the quantity of aforesaid three receipts to a total of 208.80 MT and added it to the value of admitted receipts and recorded that the claimant was issued 700.364 MT of bitumen. The learned arbitrator thereafter considered the 4 disputed receipts i.e. R 13/5, R 13/6, R 13/12 and R 13/13 and upon perusal of the same, rejected each one of them, total being 429.200 MT.

23. The learned Arbitrator, in paragraph no. 40 of the Award, recorded that the respondents (appellants herein) had produced receipts for 1129.564 MT of bitumen out of which, issue of 700.364 MT of bitumen appeared to be genuine; there is difference in the figure of bitumen issued in the case of the respondents themselves; they say that 840.364 MT of bitumen was issued and they have produced receipt of 1129.564 MT of bitumen. This raised a clear doubt in connection with assertion of the respondents (appellants herein) as recorded by the learned Arbitrator. The learned Arbitrator has also recorded that these discrepancies in the account of bitumen required investigation. The learned Arbitrator also considered the respondent's case, who had submitted that 738.128 MT of bitumen appeared to have been consumed for the work, and observed that even if it is admitted for the sake of argument that 38 MT (738.128 MT-700.364 MT) of more bitumen was issued, it cannot be assumed that any amount of issued bitumen was not returned by claimant, the price of which is recoverable by the respondents (appellants here).

24. The Ld. Arbitrator recorded that there was difference in the figures of issuance of bitumen in the case of the appellants themselves. On the one hand appellants submitted before the learned arbitrator that 840.364 M.T. of Bitumen was issued whereas they produced the receipts of 1129.564 M.T. of Bitumen. The learned arbitrator thus, came to the following conclusion regarding the issuance of bitumen on perusal of the hand receipts that:

"There is difference in the figure of Bitumen issued in the case of the Respondent themselves. They say that 840.364 M.T. of Bitumen was issued whereas they produced the receipts of 1129.564 M.T. of Bitumen. This also raises a clear doubt in the assertion of the Respondents. Shri Ram Nihora Prasad Singh, the learned Executive Engineer who argued the case submitted that he was not posted when the Bitumen was issued and work was done. He has submitted everything on the basis of documents available. I therefore feel that these discrepancies in the account of the Bitumen requires investigation. The learned Executive Engineer should therefore enquire in to the matter and see whether there is any misappropriation. Be as it may the Respondents have themselves submitted before me that 738.128 M.T. of bitumen appears to have been consumed for proper finishing of the amount of work done. It appears that 700.364 M.T. of Bitumen was actually received by the Claimant. Even if it is admitted for the sake of argument that 38 M.T. of bitumen approximately more was issued, it cannot be assumed that any amount of bitumen was not returned by the claimant the price of which is recoverable by the Respondents."

25. The learned Arbitrator finally recorded its finding at paragraph 42 that there was nothing to show that extra bitumen was issued to the claimant which was not returned. Similarly, considering the fact that though the claimant admitted issuance of 564.645 MT of bitumen only, but it appeared that about 700.364 MT of bitumen was issued to the claimant, it was held that the claimant was also not entitled for any amount on bitumen. Para 42 of the Award is quoted as under:

"42. Considering all the papers filed by the parties and the submission made, there is nothing to show that extra Bitumen was issued to the claimant which was not returned. Similarly considering the fact that though the claimant admitted issue of 564.645 M.T. of Bitumen only, whereas, it appears that about 700.364 M.T. of Bitumen was issued to the claimant, the claimant is also not entitled for any amount on Bitumen. It therefore appears that the claimants are entitle for a sum of Rs. 22,99,703.00 the admitted amount of the final bill as the Respondents have failed to establish that they are entitle for any recovery of amount on account of extra bitumen issued to the claimant which was not returned."

26. This Court finds that the learned arbitrator had recorded that there was complete mismatch even in the case of the appellants regarding issuance of bitumen which created doubt and the discrepancies in the account of bitumen required investigation.

27. This court finds that the appellants had argued before the learned arbitrator that as per measurement of work there could have been consumption of 738.127 M.T. of bitumen, but the learned arbitrator did not record any finding to this effect.

28. The argument of the appellants before this court is primarily in relation to hand receipt marked as R 13/6 which was to the extent of 140.00 MT of bitumen. It has been argued that R 13/6 of 140.00 MT stood admitted by the claimant but was erroneously rejected by the learned arbitrator so it should be added to the total supply recorded by the learned arbitrator i.e. 700.364 M.T to arrive at the aggregate of 840.364 MT as claimed to have been issued by the appellants to the claimant. On the basis of such argument, it has been submitted that in such a case unused quantity upon calculation would be 102.237 MT (840.364 MT minus 738.127 M.T.).

29. The aforesaid plea is fit to be rejected not only for the reason that no such ground was specifically taken by the appellants before the learned court below but also for the reason that even if the plea to add 140 MT of bitumen is taken into consideration, the factum of unused quantity of 102.237 MT is still not proved in absence of any finding by the learned arbitrator that 738.127 M.T. of bitumen was consumed for the work done by the claimant. The detailed discussions are as follows:-

a. This court finds that no specific ground was taken before the learned court below that the learned arbitrator erred in disputing the hand receipt marked as R 13/6 (140 MT) although the same was admitted by the claimant in the written notes of arguments filed before the learned arbitrator. In fact, the written notes of arguments of the claimant filed before the learned arbitrator was neither annexed nor referred to before the learned court below. In fact no such ground was raised before the learned court below that the finding of the learned Arbitrator in connection with issuance of R 13/6 ( 140 MT ) of bitumen was perverse and was against the admission made by the respondent.

b. The argument of the appellants before this court is primarily in relation to hand receipt marked as R 13/6 (140.00 MT of bitumen), issuance of which is said to be admitted by the claimant, is a new ground of argument raised for the first time in appeal before this court. This court is of the considered view that such ground based wholly on facts and exchange of pleadings/documents/written submissions before the learned arbitrator was required to be specifically raised before the learned court below in the petitioner under section 34 of the aforesaid Act of 1996 and having not specifically raised such a ground, it is not open to the appellants to raise such a ground for the first time in the appeal under section 37 of the aforesaid act of 1996. Such ground of challenge to the arbitral award cannot be said to be covered under any general and vague ground of challenge raised by the appellants under section 34 of the aforesaid Act of 1996. A party who assails the award as perverse has to take specific ground by referring to specific material but no such exercise was done before the learned court below and the appellants have tried to improve their case before this court by referring to R 13/6 of 140.00 MT of bitumen and claiming that the issuance of such bitumen under R 13/6 of 140.00 MT was an admission on the part of the claimant in the written notes of arguments filed before the learned arbitrator.

c. Upon perusal of the grounds of setting aside the arbitral award filed under section 34 of the aforesaid Act of 1996, it is apparent that one of the specific grounds which has been taken by the appellants before the learned court below was "for the learned Arbitrator ought to have held that in measurement of work done consumption of 738.127 M.T. of bitumen out of 840.364 M.T. cannot be disbelieved." The appellants before the learned court below insisted that the learned Arbitrator ought to have held that 738.128 MT of bitumen was consumed by the contractor and in that connection, it was submitted that the learned Arbitrator had committed error of record.

d. This Court also finds that the learned Arbitrator has not recorded any finding that 738.128 MT of bitumen was consumed in total, rather the learned Arbitrator in paragraph 40 has taken the case of the respondents and recorded that even if the plea of the appellants is admitted for the sake of argument and 38 MT of bitumen approximately more was issued, it cannot be assumed that any amount of issued bitumen was not returned by the claimant the price of which is recoverable by the respondents.

e. The entire argument of the learned counsel for the appellants before this court is focused around the submission that 738.128 MT of bitumen was consumed for the work although there is no such finding by the learned Arbitrator that 738.128 MT of bitumen was consumed for the work.

f. The learned court below has referred to the Arbitral Award and has found that the learned Arbitrator had recorded that there was inconsistency with regard to issuance of bitumen and such inconsistency could not be explained by the executive engineer who appeared before the learned Arbitrator. The learned Arbitrator had strongly recommended for enquiry with respect to misappropriated bitumen and the learned court below recorded that there was nothing brought on record to say as to whether any enquiry was conducted or not.

g. This court finds that neither there was any scope for the learned court below to record a finding that bitumen of 738.128 MT was consumed for the work nor any such finding has been recorded by the learned court below. The learned Arbitrator has also not recorded any such finding. Rather, the appellants were aggrieved by the award, inter alia, on the ground that learned Arbitrator had not recorded any such finding, which was one of the grounds taken by the appellants before the learned court below for setting aside the award under Section 34 of the Act of 1996.

h. After having held as above, it is important to note that even if it is assumed for a moment that the learned arbitrator committed error of record and omitted to see the admission on the part of the claimant with regards to R 13/6 of 140.00 MT of bitumen, then also no case of interference is made out. This is because of the reason that, the addition of R 13/6 of 140.00 MT of bitumen is sought for, to prove that 840.364 MT of bitumen was issued to the claimant, and then to show, that there was unconsumed quantity of bitumen to the extent of 102.237 MT on assumed consumption of only 738.128 MT of bitumen. However, no such finding regarding consumption of 738.128 MT of bitumen has been recorded by the learned arbitrator. Rather, the appellants were aggrieved by non-recording of such finding and challenged the award, inter alia, on such ground.

i. Thus, entire basis to calculate the 102.237 MT as unused quantity of bitumen is based on an erroneous assumption that only 738.128 MT of bitumen was consumed for the work done by the claimant. Thus, addition of R 13/6 of 140.00 MT to make the aggregate of supplies to 840.364 MT does not lead to any conclusion that 102.237 MT was unused quantity of bitumen calling for imposition of penalty and counter claim on that count.

30. So far as counter claim on account of cost of 302.179 MT of bitumen being used in the work is concerned, the learned arbitrator has rejected the said counter claim by citing reasons as the appellants could not prove issuance of the said quantity against 12th bill issuance of which was not recorded in the measurement book also. The counter claim on account of cost of 302.179 MT of bitumen has no connection with R 13/6 of 140.00 MT of bitumen. There is no scope for reappreciation of evidence on this count and no material arguments have been advanced by the appellants on this point.

31. The Ld. Court below was pleased to reject the application filed under section 34 of the Act of 1996 based on the grounds raised in the application by well-reasoned order dated 25.03.2009 specifically holding that:

"It is relevant to mention here that finding recorded with respect to quantity of bitumen are findings of facts on appraisal of evidence. This court has no power to reappraise the evidence. Moreover, no perversity in finding has been demonstrated. The finding of Hon'ble Arbitrator is based on document of the petitioner and have been recorded after physical examination with other relevant document including measurement book. Therefore, finding recorded in para 39-of the award is based on record hence cannot be disturbed. Exclusion of 429.200 M.T. from total quantity alleged to be supplied to the contractor is based on document as the hand receipts did not contain the signature of the contractor. Junior Engineer had received the quantity of the bitumen and they were to explain the quantity. As such this court is not empowered to alter the findings of the Hon'ble Arbitrator. The arbitrator is final authority on fact. Therefore, challenge to the rejection of counter claim made on account of bitumen fails and the ward is upheld on this score"

37. Thus rejection of the counter claim whether for recovery of bitumen or on account of penalty is based on, the evidence of the petition brought on the record and are essentially finding of facts. Therefore, they cannot be altered and rejection of the counter claim is hereby upheld."

32. So far as counter claim on account of 10% of the value of contract as penalty for non-completion of contract is concerned, the learned arbitrator has recorded a finding in para 52 of the award based on materials on record that both the parties have contributed in the negligence and has refused to award the counter claim on this count. This court finds no reason to interfere with the said finding of the learned arbitrator in the limited scope of interference under section 34/37 of the Act of 1996. The learned court below has rejected the plea by citing reasons as follows:-

"36. So far the counter claim made on account of recovery of penalty on account of non-completion of work within time is concerned, learned G.P. has argued that the contractor/OP. failed to complete the work within the original completion period of 18 months even within the extended period up to 31.3.03. Therefore under the terms of the agreement O.P. was liable for penalty @10% of contract value. Learned G.P. urged that the rejection of counter claim is against term of agreement. The arbitrator was bound by the terms of agreement and accordingly ought to have allowed the counter claim. On the other hand, learned counsel for the O.P.; controverting the submission of learned G.P. has referred para 45 of the award to say that closure of the agreement during progress of the work and non-completion of the total work is not attributable to O.P. He states that as a matter of policy decision, on the orders of competent authority the agreement was unilaterally closed midway. Reasons behind such closure was that work was allotted before division of Bihar State. After separation of Jharkhand State it was decided at highest level that work could be closed. And fresh estimate balance work be prepared. Fresh tender was to be held for the balance work by Jharkhand State Government. He further states that, claim for loss of profit was made only due to unilateral closure of the agreement as contractor was prevented from completing the balance work. He submits if the agreement had been closed on account of fault of the contractor then security amount is not refunded in full. But when agreement was closed by government itself entire security amount refunded then there cannot be a case of default in completion of the work."

33. In view of the aforesaid findings, this court finds no merits in this appeal, which is accordingly dismissed.

34. Interim order is vacated.

35. Let the records be immediately sent back to the court concerned.

36. Let this judgement be immediately communicated to the court concerned through FAX/e-mail.