The State Of Bihar vs M/S Mishra And Company, Partner … on 28 July, 2026

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    Patna High Court – Orders

    The State Of Bihar vs M/S Mishra And Company, Partner … on 28 July, 2026

                          IN THE HIGH COURT OF JUDICATURE AT PATNA
                                         CIVIL REVISION No.278 of 2016
                      ======================================================
                1.     The State of Bihar through The Principal Secretary, Rural Works
                       Department, Vishweshwaraia Bhawan, Bailey Road, Patna.
                2.    The Engineer-in-Chief cum-Additional Secretary, Rural Works Department,
                      Vishweshwaraia Bhawan, Bailey Road, Patna.
                3.    The Superintending Engineer, Rural Works Department, Sasaram Circle,
                      Rohtas.
                4.    The Executive Engineer, Rural Works Department, Works Division No. 1,
                      Sasaram.
                5.    The Assistant Engineer, Rural Works Department, Works Division, Sasaram.
    
                                                                              ... ... Petitioner/s
                                                      Versus
                1.1. Prabha Mishra wife of Late Surendra Kumar Mishra, X
                2.    The partner of M/s Mishra and Company namely Awadh Bihari Mishra X
    
                                                                ... ... Respondent/s
                      ======================================================
                      Appearance :
                      For the Petitioner/s   :    Mr. Piyush Kumar Pandey, AC to SC-11
                      For the Respondent/s   :    Mr. Anup Kumar, Advocate
                      ======================================================
                      CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
                      MALVIYA
                                             CAV ORDER
    
    44   28-07-2026

    Heard the learned counsel for the petitioner and the

    respondent.

    SPONSORED

    2. This Civil Revision Application is filed under

    Section 13 of the Bihar Public Works Contract Dispute

    Arbitration Tribunal Act, 2009 (hereinafter referred to as ‘Act’),

    against the arbitral award dated 13.10.2015 passed in Reference

    Case No. 29 of 2013, passed by the learned Bihar Public Works

    Contracts Disputes Arbitration Tribunal, Patna, (hereinafter

    referred to as the Tribunal) whereby and where under Reference
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    case has been disposed of holding that Opposite Party M/s.

    Mishra & Co. is entitled to receive Rs. 25,30,854/-(Twenty Five

    Lakh Thirty Thousand Eight Hundred and Fifty Four) if not paid

    earlier, with simple interest @ 10% p.a. from the date of filing

    (dated 04.03.2013) till realisation, and further awarded litigation

    costs of Rs. 26,865.

    3. The brief facts of this case are that a tender for

    various schemes, including construction and maintenance (for

    up to 5 years) of the Pahari Senduar Road to Panauli Road under

    the Mukhya Mantri Gram Sarak Yojna, was invited via letter no.

    1922 dated 10.12.2006 by the Executive Engineer, Rural Works

    Division, Sasaram. The letter stated that the work was to be

    completed within 9 months and made it clear that participants

    had to first satisfy themselves regarding the estimate, site

    conditions, quarry availability, etc., before submitting their

    tender, and that no claims on these counts would be entertained

    afterwards (marked as Annexure 1.) M/s Mishra & Co. (the

    Opposite Party) entered into Agreement No. 18F2 of 2007-08,

    and a work order was issued on 8.8.2007, requiring completion

    by 7.5.2008. Instead of complying, the construction company

    kept stalling, sending applications, citing difficulties with the

    approach road and other issues.

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    4. The company was repeatedly asked to finish the

    work via letters no. 651 (dated 29.2.2008), 1353 (dated

    2.5.2008), 1726 (dated 30.5.2008), and 1819 (dated 11.6.2008)

    since only 16% of the work had been completed, for which it

    had already been paid Rs. 23,71,736/-(Twenty Three Lakh

    Seventy One Thousand Seven Hundred and Thirty Six). Due to

    the inaction of the Opposite Party, the Executive Engineer via

    letter no. 1915 dated 24.6.2008, asked the Engineer-in-Chief to

    consider to blacklist the company. This was followed by letter

    no. 2225 (dated 22.7.2008), which stated that a date would be

    fixed for measuring the work done, the agreement would be

    canceled, an estimate for the incomplete work would be

    prepared afresh, a new tender would be invited, all additional

    costs recovered, security forfeited, and penal action taken

    against M/s Mishra & Co., if it failed to submit a work

    programme with specific dates. Through letter no. 3646, dated

    15.12.2008, again, a representation was made by the Executive

    Engineer to blacklist the Opposite Party.

    5. Finally, per a decision taken in a meeting, the

    Executive Engineer issued Notice no. 06/2009-10 (dated

    19.10.2009), directing faulty contractors, including M/s Mishra

    & Co., to be present (through an authorised representative) at
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    the work site on the specified date, since final measurement was

    to be taken on 28.11.2009, after which Agreement no. 18F2 of

    2007-08 would stand cancelled, security money seized, the

    company blacklisted, and additional costs for completing the

    remaining work recovered. Meanwhile, the petitioner had filed

    Writ Petition No. CWJC 15535 of 2009, which the (present)

    petitioner contested, the writ was ultimately dismissed as

    withdrawn, with liberty to approach the Bihar Public Works

    Contract Dispute Arbitration Tribunal.

    6. M/s Mishra & Company then filed Reference Case

    No. 29 of 2015, seeking:

    a. Rs. 25.00 lakhs for completing the 2.5 km
    road;

    b. Rs. 25,30,854/- for BSG work on the same
    2.5 km stretch;

    c. Rs. 6,00,000/- for repair work on a 0.04
    km stretch.

    The petitioners contested this Reference Case and filed a

    counter-affidavit on 26.11.2013 denying the claim. The Hon’ble

    Tribunal disposed of the Reference Case by order dated

    13.10.2015, holding that M/s Mishra & Co. was entitled to

    earnest money of Rs. 3,46,000/-(Three Lakh Forty Six

    Thousand), Bank Guarantee of Rs. 5,18,000/-(Five Lakh

    Eighteen Thousand), Security Deposits of Rs. 5,63,163/-(Five
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    Lakh Sixty Three Thousand One Hundred and Sixty Three),

    Time Extension of Rs. 10,57,069/-(Ten Lakh Fifty Seven

    Thousand Sixty Nine), less Rs. 46,612/-(Forty Six Thousand Six

    Hundred and Twelve) deducted for quality test; totalling Rs.

    25,30,854/-(Twenty Five Lakh Thirty Thousand Eight Hundren

    and Fifty Four). The Tribunal awarded this amount with 10%

    simple interest per annum from the date of filing (dated

    4.3.2013) till realization, plus litigation costs of Rs. 26,865/-

    (Twenty Six Thousand Eight Hundred and Sixty Five). Being

    aggrieved by the impugned Award dated 13.10.2015 passed by

    the Tribunal, Patna, in Reference Case No. 29 of 2013, this

    revision application is being preferred before this Court.

    7. Learned counsel for the petitioner submits that in

    the impugned Award, the Tribunal allowed the respondent’s

    claims. The counsel then further submits that while allowing the

    claimant-respondent’s claims, the Tribunal noted, in effect, that

    “nothing has been brought to show that the agreement was

    rescinded,” though, if we look closely, the Tribunal itself in Para

    6, Page 6 of the Award had already noticed the claimant-

    respondent’s own submission that the petitioners had arbitrarily

    rescinded the agreement.

    7.i. The counsel next submits that the claimant-
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    respondent, in Paragraph 2 of the claim petition, had itself

    referred to the order rescinding the contract vide Letter No.

    1674 dated 19.10.2009 and Press Communique No. 2/2012-13.

    Both were annexed as Annexure-2 series, and then prayed that

    those communications be treated as arbitrary, with a prayer for

    payment of Rs. 56,30,854/-(Fifty Six Lakh Thirty Thousand

    Eight Hundred and Fifty Four). The counsel next submits that in

    case there was a breach by the claimant-respondent, Clause 3 of

    Agreement No. 18 F2 of 2007-2008 dated 08.08.2007 provides

    for forfeiture of the security deposit, while Clause 2 speaks

    about non-payment of compensation deducted for delay unless

    an application for Extension of Time was made by the claimant-

    respondent and the same was allowed by the Executive

    Engineer.

    7. ii. The counsel for the petitioner submits that,

    nevertheless, the Tribunal without proper adjudication on the

    rescission part of the agreement (Letter No. 1674 dated

    19.10.2009 and Press Communique No. 2/2012-13) in the light

    of the Agreement dated 08.08.2007, and also without assigning

    any sort of reason, proceeded to allow the claims regarding

    Earnest Money (Rs. 3,46,000/-), Bank Guarantee (Rs.

    5,18,000/-) and Security Deposit (Rs. 5,63,163/-), though all are
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    liable to be forfeited under Clause 3 of the Agreement. The

    counsel further submits that the Tribunal allowed Rs.

    10,57,069/- deducted towards Time Extension, which is contrary

    to Clause 2 read with Clause 5 of the Agreement. It also allowed

    Rs. 46,612/- towards Quality Test Report, without adjudicating

    that Clause 32 of the Special Conditions of Contract requires

    furnishing of a Quality Test Report as a precondition for

    payment against material supplied.

    7. iii. The counsel submits that the impugned Award

    was passed without: (i) adjudicating the issue of rescission of

    contract vide Letter No. 1674 dated 19.10.2009 and Press

    Communique No. 2/2012-13, (ii) assigning any reason at all,

    and (iii) appreciating the terms of Agreement No. 18 F2 of

    2007-2008 dated 08.08.2007, relying on Associate Builders v.

    DDA, (2015) 3 SCC 49, as followed in Delhi Metro Rail

    Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd.,

    (2024) 6 SCC 357, Paras 35, 36 and 39. The counsel finally

    submits that the impugned Award, being wholly unreasoned, is

    plainly illegal, and that the Tribunal has committed a material

    irregularity in passing it. So it is urged that this Hon’ble Court,

    in exercise of its power under Section 13 of the Bihar Public

    Works Contracts Disputes Arbitration Tribunal Act, 2008, may
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    set aside the Award dated 13.10.2015.

    8. The counsel for the Opposite Party submits that the

    work in question under the Mukhya Mantri Gramin Sarak Yojna

    (MMGSY), was allotted to the Opposite Party vide Agreement

    No. 18F2 of 2007-08 dated 08.08.2007, pursuant to tender

    invited vide Letter No. 1922 dated 10.12.2006, for an estimated

    cost of Rs. 1,72,64,506/-, inclusive of five years’ maintenance

    cost of Rs. 16,43,146/-, with the stipulated period for

    completion being nine months, i.e., by 07.05.2008. The counsel

    next submits that it would appear from the records of the Civil

    Revision Petitioners themselves that substantial work was

    executed by the Opposite Party under the said Agreement, the

    show cause filed on behalf of Respondent No. 5 before the

    Tribunal on 29.10.2013 itself recording completion of work

    worth Rs. 1,12,63,673/-, entered in Measurement Book Nos.

    1810 and 2243 (marked as Annexure C), and paid for by

    Respondent No. 5 to the petitioner. The counsel adds that the

    Opposite Party’s own claim chart before the Tribunal showed

    the value of work done at Rs. 1,37,63,673/- against a total

    agreement value of Rs. 1,72,64,506/-, i.e., more than 90% of the

    value of the work.

    8 i. The counsel submits that despite such execution,
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    payment lawfully due to the Opposite Party, Earnest Money of

    Rs. 3,46,000/-, Bank Guarantee of Rs. 5,18,000/-, Security

    Deposit of Rs. 5,63,163/-, Time Extension refund of Rs.

    10,57,069/-, and Quality Test deduction refund of Rs. 46,612/-,

    aggregating Rs. 25,30,854/- was withheld, and this very break-

    up was calculated and entered by the Executive Engineer

    himself in the Measurement Book, as recorded in paragraph 5 of

    the Counter Affidavit of the Opposite Party and in the body of

    the impugned Award itself. The counsel further submits that on

    account of non-payment despite repeated representations dated

    30.01.2008 and 02.02.2008 to the Executive Engineer (on which

    the Executive Engineer himself called for a report from the

    Junior Engineer, Sri Ram Naresh Singh, vide order dated

    04.02.2008), and a further reference by the Chief Engineer

    himself to the Civil Revision Petitioners/Respondents vide letter

    dated 16.07.2008 calling for a report that appears never to have

    been furnished, the Opposite Party was constrained to approach

    this Hon’ble Court in CWJC No. 15535 of 2009, which was

    permitted to be withdrawn vide order dated 23.01.2013 with

    liberty to approach the Tribunal constituted under the Bihar

    Public Works Contract Dispute Arbitration Tribunal Act, 2009.

    8. ii. The counsel submits that the Opposite Party
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    accordingly filed Reference Case No. 29 of 2013, claiming

    under three heads:

    (a) Rs. 25,00,000/- towards completion of
    the road of length 2.5 km;

    (b) Rs. 25,30,854/- towards the amounts
    referred to above; and

    (c) Rs. 6,00,000/- towards repair of 0.4 km
    of approach road.

    The counsel points out that the Tribunal, vide the impugned

    Award dated 13.10.2015, rejected claims (a) and (c) for want of

    corroborative proof, the assertions in support thereof being

    found ‘merely verbal’ and unsupported by any agreement or

    record; however, on claim (b), the Tribunal recorded a clear

    finding that the Opposite Party had proved entitlement to the

    sum of Rs. 25,30,854/-, the same being reflected in the

    Measurement Book, and further observed that nothing had been

    brought to show that the agreement was rescinded. The counsel

    submits that it is this very finding, confined to claim (b) alone,

    that is sought to be supported in the present proceeding.

    8.iii. The counsel submits that the Award proceeds on

    an erroneous finding that security deposit is refunded only on

    completion of work the counsel submits that this proceeds on a

    mis-characterisation of the impugned Award, since the Tribunal

    has nowhere held that the work stood fully completed; on the

    contrary, it rejected the Opposite Party’s claim of Rs.
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    25,00,000/- for completion of the 2.5 km road for want of proof.

    The counsel submits that the award of Rs. 25,30,854/- is

    founded not on completion but on specific entitlement to refund

    of Earnest Money, Bank Guarantee, Security Deposit, Time

    Extension and Quality Test amounts, all duly recorded in the

    Measurement Book maintained by the Department’s own

    Executive Engineer, and that refund of such securities ought not,

    as a matter of law, remain contingent upon proof of 100%

    completion, particularly where the Tribunal found that nothing

    had been brought to show the agreement was rescinded in

    accordance with law.

    8.iv. He further submits that time extension/quality

    control refunds require sanction, and that the claim of Rs. 25

    lakhs was not entered in the Measurement Book. The counsel

    submits that this conflates two distinct heads of claim; the claim

    of Rs. 25,00,000/- was a separate and independent claim, which

    the Tribunal itself disallowed precisely because it was not

    reflected in the Measurement Book and was unsupported by

    evidence. The counsel submits that the sum of Rs. 25,30,854/-

    actually awarded is a wholly different head comprising

    refundable securities and deductions, each computed and

    entered by the Executive Engineer himself, and that this, being a
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    computation by the Department’s own officer, may be regarded

    as an admission against the interest of the Civil Revision

    Petitioners, and the grievance of want of sanction may not be

    permitted to be raised for the first time so as to detract from the

    Department’s own recorded entries.

    8.v. The counsel next submits that the disputed fact

    that only 4% of the work was completed as against the claimed

    90% is purely a disputed question of fact placed before and

    considered by the Tribunal, the fact-finding forum constituted

    for that purpose, and that the figure of 90% completion finds

    independent corroboration in the Petitioners’ own show cause

    filed before the Tribunal on 29.10.2013, recording work worth

    Rs. 1,12,63,673/- as completed and paid for. The counsel

    submits that the figure of 4% now revived stands contradicted

    by the Department’s own pleadings, and may not, with respect,

    be re-agitated as a question of fact in revisional jurisdiction.

    8.vi. In response to the allegation that Clause 15 of the

    Agreement bars entertainment of any claim of the Opposite

    Party, the learned counsel for the Opposite Party submits that

    Clause 15 would operate, on its own terms, as a bar only against

    claims arising out of alleged breach of contract, and cannot be

    read to extinguish the contractor’s entitlement to refund of his
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    own Earnest Money, Bank Guarantee and Security Deposit,

    which are refundable securities and not ‘claims’ for damages or

    loss. The counsel submits that the Petitioners have not

    demonstrated how Clause 15 defeats refund of these particular

    components, especially where the same stand computed and

    recorded in the Department’s own Measurement Book.

    8. vii. Giving a response to the allegation that no

    reasonable ground for extension of time was shown, the learned

    counsel for the Opposite Party submits that the record annexed

    to the Counter Affidavit shows that the delay in execution was

    substantially attributable to the Civil Revision Petitioners and

    not to any default of the Opposite Party. The representations

    dated 30.01.2008 and 02.02.2008 were responded to by the

    Executive Engineer, calling for a report from the Junior

    Engineer vide order dated 04.02.2008, indicating active

    engagement with site difficulties rather than abandonment by

    the contractor. The counsel further submits that the Chief

    Engineer’s letter dated 16.07.2008 appears to have gone

    unanswered, leaving the claim ‘hanged under confusion’, a state

    attributable to the Department’s own inaction. The counsel also

    submits that the price of bitumen, a principal component of the

    work, was required to be neutralised under the Bitumen Price
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    Neutralisation Scheme introduced vide Road Construction

    Department Resolution No. 3943(S) dated 18.03.2008, but such

    adjustment does not appear to have been extended to the

    Opposite Party despite enhancement in bitumen prices, resulting

    in hardship and delay not attributable to the contractor.

    8. viii. The counsel draws attention to the point of law

    that this Hon’ble Court, while exercising revisional jurisdiction,

    may not ordinarily re-appreciate the evidence or substitute its

    own view for that of the Tribunal, save where jurisdictional

    error, illegality, or material irregularity is shown to exist. The

    counsel submits that the facts of the present case are squarely

    covered by the law laid down by this Hon’ble Court in Rama

    Kant Singh v. National Hydraulic Power Corporation Ltd.,

    2012(4) PLJR 259, a decision in closely analogous

    circumstances involving a works contract for road construction

    under a similar Government scheme, where payment for

    admittedly executed work was withheld by the employer, who

    thereafter sought to terminate the contract and forfeit the

    contractor’s securities. The counsel next relies on the Hon’ble

    Supreme Court’s judgment in Hind Construction Contractors

    v. State of Maharashtra, (1979) 2 SCR 1147, held that where

    the employer itself fails to adhere to the payment terms and time
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    ceases to be of the essence by reason of the employer’s own

    conduct, any unilateral rescission by the employer is rendered

    wrongful, and the contractor becomes entitled to refund of

    security deposit, bank guarantee, and value of work done,

    together with interest. The counsel submits that applying this

    principle to the present facts, the Petitioners do not appear to

    have finally rescinded the Agreement in accordance with law, a

    fact specifically found by the Tribunal, while continuing to

    correspond with the Opposite Party regarding completion well

    beyond 07.05.2008 and withholding payment for admittedly

    executed work; and that, on a parity of reasoning with Rama

    Kant Singh (supra), no accountability for delay ought to be

    fastened on the Opposite Party so as to defeat its entitlement to

    refund.

    8.ix. The counsel submits that the very limited scope

    of revisional interference under Section 13 stands further

    fortified by the recent co-ordinate Bench decision of this

    Hon’ble Court in State of Bihar v. Devendra and Devendra

    Engicons Private Limited, C.R. No. 272 of 2016, decided on

    19.07.2023, wherein, upon closely analogous facts, this Hon’ble

    Court dismissed the State’s revision and upheld an award of

    refund of earnest money, bank guarantee and security deposit in
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    favour of the contractor, extracting the same principle from

    Rabindra Kumar Gupta v. Union of India, 2010(1) PLJR (SC)

    145 wherein it was stated that:

    “13. In view of the nature of objection
    raised in the instant revision application,
    which amounts to adjudication of disputed
    facts between the parties and also
    considering the fact that there is no error
    apparent on the face of the record of the
    impugned award as well as there is no
    irregularity gross or jurisdictional error in
    passing the impugned award, this court
    finds no merit in this revision application.”

    The counsel submits that an identical view was taken in State of

    Bihar v. M/s Kumar Construction Company, C.R. No. 196 of

    2012, decided on 19.08.2013, where despite the State’s

    contention that only 28% of the work had been completed and

    the contract rescinded, this Hon’ble Court upheld the Tribunal’s

    award of refund on the ground that the very order of rescission

    did not reflect that forfeiture was a measure to recompense loss

    suffered by the State, but was a measure of penalty consequent

    upon rescission alone, and further held that the State could not,

    for the first time during arbitral proceedings, supplant the order

    of forfeiture with fresh reasons of loss not found in the original

    order and further observed:

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    “Even while the scope of judicial review of

    an award stands circumscribed to the
    eventualities set out in Section 13 of the
    Act, there has been extensive arguments by
    both sides on the merits of the issue. The
    Supreme Court in paragraphs 9 to 14 of the
    judgments passed in the case of Rabindra
    Kumar Gupta
    (supra) has referred to a
    catena of judgments on the scope and ambit
    of judicial review of an arbitration award.
    The opinion expressed in the judgment so
    referred makes it manifestly clear that
    unless there is a jurisdictional infraction by
    the Arbitral Tribunal in making of the
    award or the award suffers from manifest
    illegality or material irregularity, it is not to
    be interfered with, in a routine manner. In
    fact merely because there exists a possible
    second view also cannot be a ground for
    interference with an Arbitral Award. It is
    also well settled that the High Court in
    exercise of powers of judicial review would
    not sit as a Court of appeal to reappreciate
    the evidence led by the parties. Thus unless
    the finding of the Tribunal is hounded with
    the perversity or is based on a wrong
    preposition of law, the High Court would
    not interfere with the award merely for a
    different possible view.”

    8. x. The counsel submits that the parity between
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    these decisions and the present case is striking, since in both

    cited matters, as here, the Petitioners sought to resist refund of

    the contractor’s own security deposit, earnest money and

    connected deductions by re-agitating disputed questions of fact

    already considered by the Tribunal, without demonstrating any

    jurisdictional infirmity, manifest illegality or material

    irregularity in the impugned Award, and in both cases this

    Hon’ble Court declined interference. The counsel submits that

    the same result must follow here, where the Tribunal’s finding

    that the Civil Revision Petitioners failed to show valid

    rescission of the Agreement, coupled with the Department’s own

    computation of the refundable amounts in the Measurement

    Book, leaves no room for interference in revisional jurisdiction.

    8. xi. The counsel lastly submits that, for the reasons

    stated above, the impugned Award dated 13.10.2015 may kindly

    be regarded as a well-considered finding of fact, based on the

    Petitioners’ own Measurement Book and documentary record,

    disclosing no jurisdictional error, illegality or material

    irregularity warranting interference. The counsel submits that

    the grounds raised by the Civil Revision Petitioners appear to be

    either factually incorrect, already considered and answered by

    the Tribunal, or in the nature of an attempt at re-appreciation of
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    evidence, and it is accordingly prayed that this Hon’ble Court be

    pleased to dismiss the present Civil Revision No. 278 of 2016

    and uphold the Award dated 13.10.2015 passed in Reference

    Case No. 29 of 2013, with costs.

    9. Having considered the rival submissions advanced

    on behalf of the parties, and the impugned order, two points fall

    for determination: first, whether the impugned Award discloses

    any jurisdictional error, illegality, or material irregularity within

    the meaning of Section 13 of the Bihar Public Works Contract

    Disputes Arbitration Tribunal Act, 2008; and second, only if the

    first is answered in the affirmative, whether the Opposite Party’s

    entitlement to refund as found by the Tribunal is sustainable on

    facts and law.

    10. From the perusal of the impugned award dated

    13.10.2015, it appears that the learned Tribunal allowed the

    claim to the extent of Rs. 25,30,854/-, comprising Earnest

    Money of Rs. 3,46,000/-, Bank Guarantee of Rs. 5,18,000/-,

    Security Deposit of Rs. 5,63,163/-, Time Extension refund of

    Rs. 10,57,069/-, and Quality Test deduction refund of Rs.

    46,612/-, together with simple interest @10% from the date of

    filing, i.e., 04.03.2013, till realization, while rejecting the further

    claims of Rs. 25,00,000/- (for completion of 2.5 km. of road and
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    500 m. BSG work) and Rs. 6,00,000/- (for maintenance of 4 km.

    of road) for want of proof.

    11. The jurisdiction under Section 13 of the Act is

    revisional only, not appellate. So, this Court is not sitting like a

    Court of First Appeal to take another swing at evidence, or to

    swap its own understanding of the facts for the Tribunal’s view,

    which is specially set up for such adjudication. Interference is

    really called for only when the Award is suffering from patent

    illegality, a jurisdictional error, or a material irregularity that

    cuts at the root. Not just because another perspective on the

    evidence was reasonably possible.

    12. On perusal of the impugned Award it becomes

    clear that the learned Tribunal was aware about the need for

    physical verification of the work done, but it has also very

    specifically recorded that the Opposite Party (Petitioner before

    the Tribunal) did not show up at the time of that physical

    verification, and that his plea that he couldn’t do the remaining

    work because the road was not fit, did not really inspire

    confidence, especially because he himself brought materials to

    site and even constructed 19 culverts. The Tribunal also noted

    that the claim about non-completion of 500 m of BSG work, and

    the 2.5 km. road, remained unrebutted by the contractor, and
    Patna High Court C.R. No.278 of 2016(44) dt.28-07-2026
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    since it was only verbal, it couldn’t be accepted. On that basis,

    the Tribunal rejected the claim of Rs. 25,00,000/-.

    13. Similarly, regarding the claim of Rs. 6,00,000/- for

    maintenance of 4 km. of road, the Tribunal held that there was

    absolutely no agreement at all between the parties for making a

    road of that length, and that the contractor’s statement on that

    was only verbal and without proof. Therefore, it refused that

    claim too. These are findings of fact, made after consideration

    of the material and the contractor’s own conduct, so they really

    do not call for any interference, and, rightly, they were not being

    attacked by either side in this proceeding.

    14. Learned counsel for the petitioner- State has laid a

    lot of stress on the fact that the Award, in allowing the sum of

    Rs. 25,30,854/-, records only that “nothing has been brought to

    show that the agreement was rescinded” and, it is argued, this

    finding sits somewhat uneasily with the Tribunal’s own recital

    elsewhere of the contractor’s own submission that the State had

    rescinded the agreement, vide Letter No. 1674 dated 19.10.2009

    and Press Communique No. 2/2012-13. So, the line is that an

    Award which notes the existence of a purported rescission, but

    then goes ahead, without dealing with it properly, to hold that no

    rescission is shown, is unreasoned, and, therefore, plainly
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    illegal.

    15. This submission cannot just be dismissed as a

    mere disagreement on facts , because it really goes to the

    adequacy of reasons. At the same time, learned counsel for the

    Opposite Party is right to say that the letter dated 19.10.2009

    and the press communique of 2012-13 were themselves put in

    issue by the contractor as arbitrary, and they were never shown,

    either before the Tribunal or in this revision, to be a rescission

    that was actually and validly done in terms of the Agreement, or

    under the law. On a reasonable reading, the Tribunal’s finding

    can be taken to mean that no lawful, effective rescission (and

    not just a unilateral communication) was established. And this

    Court isn’t convinced that this aspect alone makes the Award

    unreasoned in such a way that it becomes patent illegality.

    Therefore, Earnest Money, Bank Guarantee, and Security

    Deposit, being refundable securities, whose forfeiture under

    Clause 3 of the General Conditions presupposes an earlier,

    established liability of the contractor to pay compensation under

    some other clause, cannot be said to have been wrongly

    refunded, since no such earlier liability, and no valid rescission,

    stands established. These figures were, additionally, computed

    and entered by the State’s own Executive Engineer in the
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    Measurement Book, which fact the Tribunal has itself noted.

    The refund of those three amounts, totalling Rs. 14,27,163/-,

    along with the interest awarded thereon, shows no jurisdictional

    defect or patent illegality that calls for interference.

    16. But the situation is a bit different when we come

    to the sum of Rs. 10,57,069/- allowed towards Time Extension.

    The petitioner has specifically pushed that this deduction was

    controlled by Clause 2 read with Clause 5 of the General

    Conditions, which requires no compensation for delay unless an

    application for extension is made by the contractor and allowed

    by the Executive Engineer. Neither in the Award, nor in the

    Opposite Party’s reply before this Court, is there any

    engagement with whether such an application was actually

    made and allowed under Clause 5. An Award which grants this

    claim without referencing this specific contractual condition,

    and without recording any finding on it, falls short of what a

    reasoned Award requires, and, for this narrow, limited reason at

    least, this Court cannot ignore the flaw even in revisional

    jurisdiction.

    17. As for the sum of Rs. 46,612/- allowed towards

    the Quality Test deduction, no surviving infirmity remains for

    consideration. Clause 32 of the Special and General Conditions,
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    on which the petitioner relied, concerns only rejection of

    substandard material supplied by the contractor, and its removal

    at the contractor’s own cost, failing which removal by the

    Department at the contractor’s cost. It does not link payment to

    the furnishing of any Quality Test Report, and no other clause

    has been shown to impose such a precondition. So the

    petitioner’s challenge to this component has to fail on its own

    terms, and this amount stands on the same plane as the Earnest

    Money, Bank Guarantee and Security Deposit already discussed

    in Paragraph 6 above.

    18. In these circumstances, the impugned Award does

    not warrant being set aside in its entirety, since its core findings

    rejection of the claims of Rs. 25,00,000/- and Rs. 6,00,000/- for

    want of proof, the finding of non-establishment of a valid

    rescission resulting in refund of Earnest Money, Bank Guarantee

    and Security Deposit, and the allowance of the Quality Test

    deduction of Rs. 46,612/- are all findings of fact and law

    reasonably arrived at and are not open to interference in

    revisional jurisdiction. The Award cannot, however, be sustained

    as regards the Time Extension component, which requires

    reconsideration in light of the specific contractual clauses relied

    upon by the petitioner.

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    19. Accordingly, the present Civil Revision is allowed

    in part.

    20. The impugned Award dated 13.10.2015, insofar

    as, it rejects the claims of Rs. 25,00,000/-(Twenty Five Lakh)

    and Rs. 6,00,000/-(Six Lakh), is upheld, no interference being

    called for therein.

    21. The impugned Award, insofar as it directs refund

    of Earnest Money (Rs. 3,46,000/-), Bank Guarantee (Rs.

    5,18,000/-), Security Deposit (Rs. 5,63,163/-), and the Quality

    Test deduction refund of Rs. 46,612/-(Forty Six Thousand Six

    Hundred and Twelve), aggregating Rs. 14,73,775/-(Fourteen

    Lakh Seventy Three Thousand Seven Hundred and Seventy

    Five), together with simple interest @10% per annum thereon

    from 04.03.2013 till realization, is upheld and shall not be

    disturbed.

    22. The impugned Award, insofar as it directs

    payment of Rs. 10,57,069/-(Ten Lakh Fifty Seven Thousand and

    Sixty Nine) towards Time Extension, together with interest

    thereon, is set aside, and the matter to this limited extent is

    remitted to the learned Tribunal for fresh adjudication in light of

    Clause 2 read with Clause 5 of the General Conditions, and

    Clause 15 of the Special and General Conditions bearing on rate
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    fluctuation, after affording both parties an opportunity of

    hearing.

    23. The Tribunal shall endeavor to dispose of the

    remitted issue expeditiously, and preferably within a period of

    four months from the date of receipt of a copy of this order.

    24. The parties shall bear their own costs.

    (Ramesh Chand Malviya, J)
    Sunnykr/-

    U



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