C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 Reserved On : 13/11/2025 Pronounced On : 24/11/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CIVIL REVISION APPLICATION NO. 478 of 2016 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J. C. DOSHI ========================================================== Approved for Reporting Yes No ========================================================== MARVELLOUS CONSTRUCTION CO. Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: PARAS K SUKHWANI(8284) for the Applicant(s) No. 1 MR BHARAT VYAS, AGP for the Opponent(s) No. 1 RULE SERVED for the Opponent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI CAV JUDGMENT 1. By way of this petition led u/s 12 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (in short “the Act”), the petitioner challenges judgment and award dated 30.6.2016 passed in Arbitration Reference No.18 of 2001 by the learned Arbitration Tribunal, whereby the reference moved by the petitioner was partly allowed. 2. In reference proceedings, the petitioner was declared C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 entitled to get in all Rs.2,39,509/- from the respondent with 10% yearly interest from the date of ling of arbitration reference till its realization deducting the interest, if any, accrued or earned on the security deposit in form of xed deposit or savings certicate, bonus, etc. The petitioner is a government approved A-class contractor. The Executive Engineer, R&B Division, Godhra pursuant to the tender issued for work of FDR to Ahmedabad – Godhra – Dahod - Indore Road, awarded the work for carrying out the repairing work on the road from 144.00 km to 161.00 km on the aforesaid stretch of the highway. The work was awarded to the petitioner at 15.20% higher cost than the tender cost of Rs.39,99,925/-. The work order was accordingly issued on 24.2.1997 with the condition that the work was to be completed within ve months therefrom, however, the petitioner completed the work on 12.12.1997. 3. In the aforesaid factual aspect, the petitioner claimed that though the disputed contract work is completed, the security deposit and performance bonus, etc. so also accrued interest thereon were not paid back. It is also come on record that in the rst bill, Rs. 22,44,829/- was paid by the Executive Engineer leaving Rs.17,55,096/- remained outstanding. Therefore, the petitioner after exchanging the notice and letters, moved aforesaid arbitration reference before the learned Tribunal claiming outstanding amount of the rst bill as well as the amount of the security deposit and other related statutory advance. 4. The learned Tribunal, after permitting both the parties C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 to lead the evidence and after hearing learned advocates for both the parties, allowed claim No.1 i.e. amount of nal bill and claim No.2 i.e. amount of the refund of the security. The rst claim was partly allowed in tune of Rs.65,709/-. The second claim was allowed in full granting the refund of the security amount of Rs.1,73,800/- in total, amount of Rs.2,39,509/- was awarded by the learned Tribunal along with 10% interest thereon per annum. 5. Being aggrieved by allowing rst claim partly, the petitioner has preferred this petition inter alia on the ground mentioned in the petition memo. 6. Learned advocate Mr. Paras Sukhwani appearing for the petitioner would submit that the learned Tribunal has committed serious error in partly allowing the reference and granted meager amount. The judgment though granted award in favour of the petitioner, however, runs with Aaw, passing without understanding the facts of the case. He would further submit that it is no one's case that work awarded by the Executive Engineer has not been completed. He would further submit that the work carried out by the petitioner for repairing the road was also certied by the Executive Engineer before preparing the nal bill. He would further submit that on belated defence of improper thickness of the road, the Executive Engineer has deducted supplementary amount from the nal bill, which is erroneously upheld by the learned Tribunal. He would further submit that except raising the complaint about thickness of the sealcoat and Bituminous macodant layer on a lesser C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 proportion, raised on 8.6.1999, no allegation was ever made, no grievance was ever raised. He would further submit that raising of such grievance on 8.6.1999 raised rst time was beyond the statutory limit and guarantee of work and therefore raising of such grievance pales into insignicance. The defect liability period was already expired before the grievance was rst time raised. In the aforesaid circumstances, the Executive Engineer was required to pay full bill, and since he has not paid the entire nal bill, the reference was made to the Tribunal to claim full payment award, and was required to be adjudicated accordingly. However, the learned Tribunal has committed serious error in awarding meager amount of Rs.65,709/- towards arrears of the claim of the amount of nal bill. He would further submit that the petitioner has no grievance in regards to the award of amount of refund of the security of Rs.1,73,800/- or charging of interest at 10% upon the amount of award. 7. In the premises aforesaid arguments, learned advocate Mr. Sukhwani requests to allow this petition and to grant the complete relief, as prayed for, by the petitioner in the arbitration reference. 8. On the other hand, learned AGP would submit that when the rst bill was tendered and was assessed on 28.10.1997 by the Executive Engineer, the bill was claiming full amount of work as claimed in the arbitration reference, however, the government, after considering the fact that work of surfacing the road was not made as per the standard and condition of the tender, has paid the amount at a reduced rate. He would C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 further submit that while paying the amount of Rs. 22,44,849/-, the Executive Engineer has given a specic reason that the road was not surfaced with required thickness as per the tender specication and there was insuFicient thickness of the sealcoat and Bituminous macodant layer on the road and considering these aspects, the full and nal bill was paid in tune of Rs. 22,44,849/-. He would further submit that the petitioner has accepted the amount of the bill without raising any objection or keeping liberty to raise the objection against applying reason of lesser thickness applied on the road for paying reduced amount. Therefore now, the petitioner is not entitled to claim any further amount. Learned AGP would further submit that it is incorrect to say that the dispute arose on 8.6.1999 rst time. He would further submit that the Executive Engineer and the State Government were very much clear on 28.10.1997 when the work was nalised. The written opinion was expressed that required thickness of the sealcoat and Bituminous macodant layer was not applied on the road. In the aforesaid circumstances, learned AGP would submit that ling of arbitration reference was billeted afterthought and has rightly been addressed by the learned Tribunal. He would further submit that in the revisional jurisdiction, since no error has been committed by the learned Tribunal, warrants interference at the hands of this Court. 9. Upon above submission, learned AGP prays to dismiss this petition. I have heard learned advocates for both the sides and anxiously paid consideration to the material placed on record, including the order of the learned Tribunal passed in arbitration reference. Page 5 of 13 C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 10. At the outset, let refer section 12 of the Act of 1992, as to understand the scope of interference:- “SECTION 12 : Revision (1) The High Court may, suo moto at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call far the record of any case in which an award or interim award has been made or, as the case may be reviewed and if the Tribunal appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks ,t. (2) For the purpose of exercising it powers of revision under this section, the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 (V of 1908) while exercising its powers of revision under section 115 of the Code, and for that purpose the Tribunal shall be deemed to be a Court subordinate to it.” 11. The revisional power vested with the High Court is to examine that whether the learned Tribunal (a) have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. If these three or any of the conditions exist, it gives power to the High Court to exercise revisional C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 jurisdiction. 12. Sub section (2) of section 12 indicates that power of the revision u/s 12 is akin to the power u/s 115 of the CPC. 13. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, 1969 (2) SCC 74, it has been observed by the Hon’ble Apex Court as under:- “Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior Courts would be a8ected or would become inapplicable by making a distinction between a petition for revision and an appeal. (Emphasis supplied).” 14. In Yunus Ali (Dead) Through His L.Rs. Versus Khursheed Akram, 2008 AIR (SC) 2607 in regards to power u/s 115 of the Code, the Hon’ble Apex Court observed thus:- “It is well-settled position in law that u/s. 115 of the Code of Civil Procedure the High Court cannot re- appreciate the evidence and cannot set aside the C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 concurrent ,ndings of the Courts below by taking a di8erent view of the evidence. The High Court is empowered only to interfere with the ,ndings of fact if the ,ndings are perverse or there has been a non- appreciation or non-consideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.” 15. Thus, the revisional power for all limited grounds is primarily to correct the jurisdictional error, as the High Court is superior Court, hold power to correct error of understanding provisions of law and application of them. 16. In background of aforesaid legal provisions of law, let examine that whether the ndings of the learned Tribunal are perverse or there has been unknown appreciation or non- consideration of material evidence on record by the Court below or the learned Tribunal has exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or illegally exercised jurisdiction with material irregularity. 17. In para 5,6 and 9 of the impugned judgment and award, the learned Tribunal has observed thus:- “5. The sum and substance of the argument of L.A. Mr. H. S. Shah for the respondents is that the work of the petitioner is sub-standard and it is not as per speci,cation of the contract and due to inferior quality of work, during Monsoon, patches had occurred and the petitioner was directed to carry out repairing and recti,cation work and the Deputy Engineer has given notice Exh. P-12 and the Executive Engineer has also given notice which is at Exh. P-13. Moreover, workmanship of the petitioner C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 is poor and in these circumstances in the ,rst R.A. Bill petitioner was paid reduced rate due to carrying out the work in lesser thickness of each layer than speci,ed in the tender and this these things get support from the R.A. Bill which is produced along with Exh. 40. Shri Shah has further argued that on 13/6/97 Superintending Engineer had taken visit of the work site( P-14) and ne found that the thickness of the sealcoat and Bituminous macodant layer is less andnot as per standard speci,cation. Thereafter Executive Engineer, Deputy Executive Engineer and other technical sta8 visited the site and inspected the work. They measured the thickness of the layers of B..S.G., sealcoat and Bituminous macadam at di8erent chainages of the work and Rozkam was prepared and copy thereof is produced at Exh. 38 and the work of the petitioner was found sub-standard and not as per speci,cation of the tender. The thickness was found to be lesser than the speci,ed. Accordingly each item was worked out and the ,rst running bill of Rs. 22,44,847-00 had been paid on 28/10/97 and the petitioner has accepted the payment and in these circumstances petitioner is not entitled for ,nal bill amount as claimed by him. 6. After hearing the LAs. of both the sides and perusing the record placed by both the parties, it is found that it is not disputed that the work was allotted tot he petitioner by agreement No. B-2/73 of 1996-97 and the work order was issued on 24/2/1997. The stipulated period of work is three months and the work is required to be completed on or before 25/5/95 and this is supported by Exh. P-11 which 15 the copy of the work order.. The cost of the work is Rs. 34,71,909-00.It is also found from the record Exh. R-34 which the copy of second and ,nal bill that work has been completed on 12/12/97. It is also not disputed that respondents have not paid the full amount of ,nal bill as demanded by the petitioner alleging that the work of the petitioner regarding sealcoat and other items i.e. B.S.G. and B.M. is sub- standard and not as per tender speci,cation and thickness is found to be less when the o8icers of the C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 respondents measured it on site, some time in the month of June, 1997 (Ex. 35 & Ex. 39). As against this, it is the say of the petitioner that notice regarding less thickness was given after two years of completion of the work when defect liability period is over. But, if we peruse the record, it is found that during the course of execution of the work, damages to the surface took place and the petitioner was directed for repairing by the Deputy Executive Engineer on 30/8/97 and the copy thereof is produced at Exh. P-12. Thereafter Executive Engineer has also written a letter to the petitioner for this purpose and the copy thereof is produced at Exh. 13. If we peruse both the letters, in any letter we do not ,nd that the thickness of sealcoat and other coats is not as per standard speci,cation and it is less. The respondents have relied upon the Rozkam which they have performed after verifying the thickness of road surface. The copy thereof is produced at Exh.35. Along with the Rozkam the respondents have also produced the information regarding thickness of sealcoat and other coats which were taken at various places of the road work which was allotted to the petitioner. In these circumstances it can be seen that the thickness of sealcoat and other coats is less than the speci,ed and Rozkam was prepared. The respondents have reproduced type copy of Rozkam (Exh. 35) on the basis of original Rozkam (Exh. 39) which is not legible. If we go through Rozkam, there is ambiguity in the date of Rozkam. But if we peruse the Rozkam, in that Rozkam it is found that site was inspected and Rozkam was prepared after visit of Superintending Engineer dated 26/6/97 and as per his oral instruction of the o8icer site was inspected and in these circumstances it can be presumed that Rozkam is executed after 26/6/97 and before preparation of 1 st R.A. Bill which was paid on 28/10/97. In these circumstances notices dated 30/8/97 and 6/10/97 and Rozkam is more helpful to prove that the work which was executed by the petitioner was sub-standard and having less thickness of sealcoat and other coats. If we peruse 1 st R.A. Bill, copy of which is produced along with Exh. R-26, C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 this R.A. Bill hap been prepared and paid on 28/10/97 for the amount of Rs. 22,44,849-00. In this R.. bill, petitioner was paid reduced rates for items No. 1, No. 2, No. 3, No. 4 for the work of B.S.G., B.M. and sealcoat for having executed the work in less thickness than speci,ed in tender (Exh. R-26, page 85 to 96) and the petitioner has accepted the amount of bill without any objection and he has accepted that he has received the amount of Rs. 22,44,829-00 towards ,rst R.A. Bill, in his petition. and in these circumstances it can be said that the petitioner had knowledge that the work was executed in lesser thickness and not as per standard speci,cation and it is sub- standard work and in these circumstances reduced rate and reduced payment has been given to the petitioner in 1st R.A. Bill and in these circumstances we do not ,nd substance in the argument of L.A. Mr. K.G. Sukhwani for the petitioner that after defect liability period is over, respondents had raised the dispute regarding less thickness of the sealcoat. 9. After hearing the L.As. of both the sides, it is the fact that the o8icers of the respondents have given two notices which are dated 30/8/97 and 6/10/97. la both the notices they have directed the petitioner for repairing damages which had occurred due to Monsoon. As per the copy of 1 st R.A. Bill which is produced along with Exh. R-26 in which reduced rate has been paid and petitioner has accepted the bill without prøtest. Moreover, it is found from the 2nd and ,nal bill Exh. 38 that the petitioner has completed the work on 12/12/1997. The respondents were called upon to submit updated ,nal bill of the petitioner which they have produced at R- 34. In these circumstances the petitioner is entitled for the amount of 2 nd and ,nal bill of Rs. 65,709-00 after statutory deduction of cost of materials, Asphalt, Time Limit Deposit, I.T. etc.” C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 18. What could be noticeable that on 3.6.1997, the Superintending Engineer had paid visit of the work site (Exh. P14) and noticed that thickness of sealcoat and Bituminous macodant layer was par and substandard than required as per the tender condition. The Executive Engineer, the deputy Executive Engineer, and other technical staF subsequently visited the site and inspected the work, and on that day, measurement of thickness of sealcoat and Bituminous macodant layer at diFerent chinages of the work was carried out, pursuant to which, Rojkam was also prepared [See Exh.35]. It is on that very day, the Executive Engineer found the work of the petitioner substandard and much lesser than the specications of the tender. The rst running bill was tendered and paid on 28.10.1997 noting aforesaid anomaly in the work of the petitioner. Without raising any objection, the petitioner has accepted the amount of Rs.22,44,847/- much less than the billed amount without raising any protest as against the total bill amount of Rs.34,71,909/- [See: Exh.R34]. The road which was resurfaced having been measured was found less than the required thickness of the sealcoat and Bituminous macodant layer, which has witnessed pothole post rainy season. The deputy Executive Engineer by letter dated 30.8.1997 directed the petitioner to repair all the potholes [See: Exh.P12]. Another written communication was made at Exh.13. These letters were not replied. These letters specied and established that resurfacing work of the road was substandard and not as per the specications. The petitioner in proceedings of the arbitration reference i.e. the copy of Rojkam at Exh.35 along with the documents indicate that the petitioner has not applied suFicient sealcoat and the C/CRA/478/2016 CAV JUDGMENT DATED: 24/11/2025 thickness thereof was sub standard and less than the standard xed in the tender. All these aspects reveal that the learned Tribunal has considered evidence on record and after analyzing evidence on record, passed impugned award after applying mind. Perusal of the award passed by the learned Tribunal noticed that the learned Tribunal has widely discussed and scrutinized the evidence relied before it and passed the impugned award. According to this court, the petitioner failed to make out that the intervention of this court, under the revisional jurisdiction is necessitated. 19. For the foregoing reasons, the petition fails and stands dismissed. Rule discharged. 20. Registry is directed to return back the R & P, if any, to the concerned Court forthwith. (J. C. DOSHI,J) SHEKHAR P. BARVE Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 24/11/2025 13:35:02