MD, Foundation Engineer Shatu Ltd. Vs. Civil Engineer (RHD) Sarak Bahban, 2001

 

Supreme Court

Appellate Division

(Civil)

Present:

Mahmudul Amin Choudhury CJ

Mainur Reza Chowdhury J

Mohammad Gholam Rabbani J

Md. Ruhul Amin J

Managing Director, Foundation Engineer Shatu Ltd……Appellant

Vs.

The Civil Engineer (RHD) Sarak Bahban……………………Respondent

 Judgment

March 19, 2001.

Lawyers Involved:

Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman Advocate-on-Record – For the Petitioner.

Mahbubey Alam, Additional Attorney General, instructed by A. K. M. Shahidul Haque, Advocate-on-Record – For the Respondent.

Civil Appeal No. 131 of 2000

(From the Judgment and Order dated 2.11.1998 passed by the High Court Division in first Miscellaneous Appeal No. 35 of 1996)

Judgment

Mohammad Gholam Rabbani J.- Appellant Managing Director, foundation Engineer Shatu Ltd. obtained a work order from Roads & Highways Department, Development Division, Naogaon, for the construction of a bridge over the river Atrai on a road. The work was completed in accordance with the terms of the work order and the appellant had to undertake addition­al works. Subsequently there arose disputes between the parties in respect of rates for the additional works extra cost for using Sylhet boulders instead of local boulders, compensation for the laborers remaining idle due to the late supply of the plan and increase of rates or prices of different mate­rials Ultimately the matter was referred to an Arbitrator, namely Engineer, Roads and Highways of Dhaka Zone.

2. The Arbitrator gave his award on 14.12.1993 on contest in favour of the appellant thereafter the appellant had to file Miscellaneous Case No. 16 of 1995 in the First Court of Subordinate Judge, Dhaka or making the award a rule of the Court. The respondent Chief Engineer, Roads and Highways, contested the said case on vari­ous grounds. But ultimately learned Subordinate Judge made the award a Rule of the Court by his judgment and decree dated 3.7.1995. The respondent then filed Miscellaneous Appeal No.35 of 1996 against thereof. A Division Bench of the High Court Division by the Judgment and order dated 2.11.1998 allowed the appeal and set aside the judgment and order of the learned Subordinate judge on the ground that the Arbitrator misconducted himself in making the award without “physical” veri­fication upon visit of the site of works and therefore, the learned Subordinate Judge, “committed illegality in making the award a rate of the court.”

3. Leave was granted at the instance of the plaintiff appellant to examine the correctness of the finding of the High Court Division that the Arbitrator misconduct himself vis-a-vis the subject matter of the arbitration.

4. Dr. Rafiqur Rahman, learned Advocate for the appellant, submits that there was no dispute before the Arbitrator as to the quantity of the works done by the appellant, but the dispute was about the rates which the appellant was entitled to get for the work done and as such there was no necessity on the part of the Arbitrator to undertake physical verification of the works done.

5. Learned Additional Attorney General for the respondent defendant finds difficult to assail the submissions of Dr. Rafiqur Rahman and challenges the award on the ground that the Arbitrator misconducted himself in awarding increase rates which are higher than the quoted rates in the ten­der.

6. At the outset we must reject the sub­mission of the learned Additional Attorney General on the ground that the leave was not granted to that effect. The term miscon­duct occurring under Section 30 of the Arbitration Act is no doubt includes neglect for duties and responsibilities by an Arbitrator. But in the instant case we do not find any neglect to duties or responsibilities by the Arbitrator. Arbitrator gave award in favour of the appellant with regard to the rates of the works actually done and certified by the respondent. Therefore, it was not at all necessary for the Arbitrator to make physical verification of the works in question. The High Court Division missed this vital aspect of the case and uncon­sciously though that physical verification of the works at the site was necessary before giving the award in question. We do not find any basis upon which the High Court Division could have found that the Arbitrator misconducted himself for not visiting the site. We therefore, conclude that the finding of the High Court Division in this regard is erroneous and as such its judgment and order cannot be maintained.

7. In the result, the appeal is allowed without any order as to cost. Judgment and order dated 2.11.1998 passed by the High Court Division in F. M.A. No, 35 of 1996 are set aside and those dated 3.7.1995 passed by the First Court of Subordinate Judge, Dhaka, in Miscellaneous Case no. 16of 1995 are restored.

Ed.

Source : II ADC (2005) 782

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