JUDGMENT
S.C. Mohapatra, J.
1. This is an appeal by the claimant under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as ‘the Act’).
2. On basis of tender on 15-9-1978, claimant was selected as the contractor for construction of spillway of right head regulator of Talsara Irrigation Project. Agreement between parties was executed on 24-1-1979. In the meantime scheduled rates had been changed by State Government with effect from 1-1-1979. After executing a portion of the work, although stipulated date of completion of work was 23-7-1980, claimant abandoned the work on 31-3-1980, three months before. Claimant prayed for
closure of the agreement. Waiting for three years, claimant made a reference in the year 1983 to Arbitration Tribunal under Section 41A of the Act as amended in Orissa. Before the Tribunal, claimant sought for award in respect of extra work done, escalation of rate and refund of security. Tribunal did not find any merit in respect of the first two items of claim and rejected the same. In respect of refund of security. Tribunal came to conclusion that the same is premature as no order has been passed on prayer of the claimant to close the contract.
3. Claimant objected to the award on all the three findings. Trial Court has, however, refused to set aside the award which is assailed in this appeal.
4. Court is not the appellate authority of the arbitrator in respect of an award. Accordingly, findings of facts by the Tribunal in the award cannot be lightly interfered with by the Court unless they come within the scope of interference, [n this case, Trial Court rightly refused to set aside the award in respect of the first two items of claim.
5. Third item stands on a different footing. There is no dispute that claimant had some amount in deposit with the respondent towards security. Claimant having expressed that he has abandoned the execution of further work, other party to the contract is either to take steps for recovery of less sustained by it on account of abandonment or being satisfied with the justification for abandonment, finally close the contract. Security is to be dealt with in accordance with terms of the agreement thereafter.
6. Three years after notice of abandonment, reference was made to Tribunal. This period is more than reasonable for coming to a decision whether terms of contract in respect of security for abandonment of work would be taken. Silence for such a long period amounts to refusal to pay back the security. Even if no decision was taken on receipt of notice of arbitration, respondent could have brought all facts why the security has not been refunded. In such a circumstance, terms of agreement by finding that it is premature is
an error of law apparent on the face of the award. No further material is necessary to be considered to come to this conclusion. Award
to that extent is set aside.
7. Normally, I would have directed to incorporate in the award refund of the security amount. I, however, find that under misconception of law, officers of the State Government have not raised the various objections to the payment of security as the clause itself provides for several conditions under which a security may be refused to be refunded. This requires adjudication by the Tribunal.
8. Award is accordingly set aside as far as security is concerned and Arbitration Tribunal is directed to reconsider the question after giving opportunity to opposite party to file statement in that regard and after giving opportunity to both parties pass necessary award in accordance with law.
9. In the result, appeal is allowed in part. There shall be no order as to costs.