Background of the Appeal: On 30 March 2000, these two parties entered into a contract for the
construction of a main building with some auxiliary structure (Lot-1) of the 210 MW Siddirganj
Thermal Power Station Construction Project at Narayanganj. This contract contains an arbitration
clause and mentions that the project was to be completed within 600 days from the date of the
contract but it was completed by 1553 days because of the fault of the appellant employer and for
the result of delayed excess payment required to be paid by the respondent in a different field. The
Arbitration Tribunal found guilty appellants and awarded a total of TK 70,09,33,243.31 as against
the total claim of TK. 202,47,32,385.00 by the respondents for certain claims. The appellants being
aggrieved preferred arbitration miscellaneous case before the learned District Judge, Dhaka,
Challenging the award by applying section 42 (1) of the Arbitration Act, 2001. The respondent
then filed a written objection and the learned District Judge relying on Section 43 of the Arbitration
Act 2001 rejected the case for setting aside. Being aggrieved against there, the appellants came up
with an instant appeal.
Issues: Are the compensation claims attracted section 73 of the Contract Act, 1872 Further issue
is that have any facts arising out of which the court could set aside the award under section 43 of
the Arbitration Act, 2001?
Judgment: The High Court Division dismissed the appeal. Justice Shah Abu Nayeem Mominur
Rahman and Justice Shahidul Islam give the judgment. The High Court Davison upon
consideration of all facts and circumstancessaid that the claim for compensation for loss or damage
caused by the breach of contract under section 73 of the Contract Act, 1872 is not attracted in the
instant case. It is also held that an arbitral award can only be set aside under section 43 of the
Arbitration Act 2001 when it is opposed to law and public policy, excessive, mala fide and not
based on materials record but this arbitral award does not suffer from this infirmity.
Comments: In this case, two main issues arise. One is the claim for compensation under section
73 of the Contract Act. Under this section, a party can claim compensation for loss or damage
caused by the breach of contracts. We see it is contracted that, the project must be done within 600
days but actually, this is done by 1553 days. In this delay generally, no loss occurred of the
appellant except in completion of the project in due time. It is admitted by the appellant that this
delay is for the fault of them. So we can in a general sense say that if the appellant did not make
any fault then the respondent can submit the project within due time. Under section 42 of the
Arbitration Act, 2001 by the application of a party, the court can set aside an arbitral award on the
grounds which mentioned in section 43 of this Act. The aggrieved party in appeal claims that the
tribunal award is hit by section 43(1) (b) (II) of the Arbitration Act, 2001 and claims that the judge
misread and misapplied. Section 43.Section 43(1) (b) (II) clearly said that if the award is opposed
to the law for the time being forced in Bangladesh then the court set aside the arbitral award. The
Appellant party said that the award was opposed to section 73 of the contract act but did not find
any reasoning supportive of this claim by the court.