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2005 DIGILAW 215 (MP)

State of Madhya Pradesh v. P. D. Goyal

2005-02-10

DIPAK MISRA, U.C.MAHESHWARI

body2005
Judgment ( 1. ) THIS revision petition is preferred under Section 19 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 by the applicants against the award dated 20-6-1994 passed by the Madhya Pradesh Arbitration Tribunal, Bhopal in Reference Case No. 76 of 1992, whereby the claim/reference of the non-applicant was partly allowed and the applicant was directed to release the F. D. R. amounting Rs. 2,58,305/- including interest thereon to the non-applicant. Beside this the cost of the reference and the Counsel fee are also awarded. ( 2. ) BRIEF facts of the case are that the non-applicants tender was accepted by the applicants and the work of construction of approach road to high level bridge in Km. 397/4 of National Highway No. 26 (Kurmundu Nala) including construction of five number Hume Pipe was given by the agreement No. 23/dl 87-88. In this regard work order was issued on 19-10-1987 and initially probable amount of contract was 16. 35 lacs and was to be completed within eighteen months including rainy season and according to this terms the work was to be completed by 18-4-1989. ( 3. ) AS per the non-applicant he could not complete the work within the stipulated period because some forest land was also coming in the alignment of work and the present applicant could not make available that side for said work but according to direction of the applicant, non-applicant completed the work of the remaining portion. During performance of contract on 30-6-1990, first extension was granted to the non-applicant and during this period the work side was transferred from Kareli Division to Seoni Division but due to lack of this information non-applicant could not correspond with the Seoni Division. ( 4. ) AFTER performing the work of W. B. M. sub-base the liquid of primer bituminous was required before laying the premix carpet. According to the terms of agreement this bitumen was to be supplied by the owner applicant but was not supplied. However, at the subsequent stage non-applicant was directed by the owner that bitumen was to be arranged by the non-applicant, but the rate of this bitumen was not approved by the applicant/owner. According to the terms of agreement this bitumen was to be supplied by the owner applicant but was not supplied. However, at the subsequent stage non-applicant was directed by the owner that bitumen was to be arranged by the non-applicant, but the rate of this bitumen was not approved by the applicant/owner. Therefore, delay was caused in laying the bitumen carpet and was not completed within the time and land laying G. I. pipe for railing also were not provided and in this connection no instructions were communicated to the non-applicant up to 30-6-1990 for which the petitioner had applied for extension of time. The forest land was also not made available up to 30-6-1990 and due to this the non-applicant was prevented to complete the work according to the terms of agreement. ( 5. ) AS per non-applicant no running bill was paid after 28-2-1990. Although non-applicant requested for so many times. Even subsequent running bills were not paid within time and when the payment was made on 5-9-1990 in that bill the whole work executed by the non-applicant was not included. On the contrary, the applicant No. 2 by letter dated 29-1-1991 (Ex. P-11) and by letter dated 14-3-1991 (Ex. P-14) issued show-cause notice to the non-applicant for taking action under Clauses 3 and 3-C of the agreement. As per submissions of the non-applicant this show-cause notice was unwanted and illegal as final payment of other work including the impugned work in dispute were not given by the applicant No. 2 on 21-10-1991 and Rs. 2,58,305/- was withheld by the applicants in the form of F. D. R. and no information was supplied to the non-applicant about the details of deducted amount. ( 6. ) NON-APPLICANT has also claimed of the payment of earth work quantity without deduction of shrinkage allowance @ 10% with the contention that the deduction for shrinkage allowance by the applicants is unauthorized and under the violation of the terms of the agreement and non-applicant claimed Rs. 64,912. 60 in this regard and total claim submitted for Rs. 3,23,217. 60 including said F. D. R. ( 7. ) BEFORE the Tribunal by filing the written statement the present applicant has controverted all the claims of the non- applicant and it was alleged that the claimant-contractor did not execute the work within the time and as per specification. 64,912. 60 in this regard and total claim submitted for Rs. 3,23,217. 60 including said F. D. R. ( 7. ) BEFORE the Tribunal by filing the written statement the present applicant has controverted all the claims of the non- applicant and it was alleged that the claimant-contractor did not execute the work within the time and as per specification. However, it was admitted that the forest land falling within the alignment of the approach road could not be resolved and the non-applicant was asked to leave that much portion of the work and complete the remaining work. The applicant had also pleaded that the non-applicant did not complete the work where the site was available and put forth the whole liability on the shoulders of the owner. ( 8. ) AFTER giving due consideration to the evidence on record and documents, the Tribunal came to the conclusion in Para 6. 1 that non-applicant could not complete the work for not making available the forest area by the present applicants and, therefore, breach of contract is on the part of the applicants. Not only this, but in the same paragraph it was mentioned that at the time of giving extension to perform the work the concerning officers of the applicant have recommended the extension application by Ex. P-32, dated 6-3-1990 indicating "50% work completed up to 4/89. Now about 95% work completed by the contractor". Thus, Ex. P-32 was recommended by Executive Engineer of the applicant on 6-3-1990. It was also found in the same paragraph that the applicants have not submitted any documents relating to the forest area, when it was made available to the non-applicant and the extension of the time was given by the applicant department because applicants were not in a position to make available the site to the non-applicant. ( 9. ) THE rate of bituminous primer coat was not sanctioned by the applicants and the concerning liquid bituminous primer for lying tack coat over W. B. M. surface was not supplied by the applicants as per terms of the agreement and when non-applicant was directed for this work then non-applicant submitted the rate @ Rs. 15/- per sq. m. by Ex. P-20 dated 29-2-1990. While by Ex. P-33, dated 7-3-1990, the Executive Engineer of the applicants wrote to the Superintending Engineer recommended the rate Rs. 10/- per sq. 15/- per sq. m. by Ex. P-20 dated 29-2-1990. While by Ex. P-33, dated 7-3-1990, the Executive Engineer of the applicants wrote to the Superintending Engineer recommended the rate Rs. 10/- per sq. m. but the applicants did not sanction any rate under the intimation to the non-applicant and ultimately, Tribunal has come to the conclusion that the non-applicant had rightly not started the work and therefore, he is not responsible for non-completion of the said items. ( 10. ) SO far as the claim relating to delay in payment of the running bills the Tribunal has rightly held that non-applicant is entitled only interest on the ground of delayed payment but as the same was not claimed it was not awarded. ( 11. ) SO far as railing is concerned, according to non- applicant as per specifications of the applicant such pipes were not available in the market and the same was informed by the Ex. P-21, dated 4-5-1990 to the applicant and non-applicant also informed in the same letter the gauge of the light steel pipe to be used in railing work, and when the pipe of specification were not available in the market then it was not the duty of the present non-applicants under the terms of the agreement, and therefore, if the concerning pipes were not available in the market and due to non-availability of the same the liability can not be attributed to the present applicants. ( 12. ) SO far as Clause 3-C of the agreement is concerned which relating to the termination of the contract, as per present applicants the progress of work was not satisfactory and so many defects were found in the work and some work relating to the pitching was not done by the non-applicant but the Tribunal after giving due consideration to the site-order-book Art. D, which shows that Superintending Engineer of the applicant visited the work site on 15-12-1987 and 18-2-1988 and had expressed his opinion in the above said site-order-book that the progress of work are very good and it should be kept up. Again on 17-9-1988, the Superintendent Engineer inspected the progress of the work and directed to the Executive Engineer for settlement of some difference. He again inspected on 6-2-1989 and gave certain directions regarding providing proper side slopes in places of high embankment and after noting these instructions non-applicant vide Ex. Again on 17-9-1988, the Superintendent Engineer inspected the progress of the work and directed to the Executive Engineer for settlement of some difference. He again inspected on 6-2-1989 and gave certain directions regarding providing proper side slopes in places of high embankment and after noting these instructions non-applicant vide Ex. P-32 submitted an application for extension of time up to 30-6-1990, on which the above said recommendations that "95% work was completed" was given by the Executive Engineer and it was also found that reserved forest land area was not made available by the applicants and in view of these circumstances the Tribunal has come to this conclusion that the delay in non-completion of work was not on the part of the present non-applicant, and therefore it was concluded by the Tribunal that the termination of the contract by the non-applicant was illegal and as such no fault was found on the part of the present non-applicants. ( 13. ) SO far as claim of non-applicant in relating F. D. R. amounting 2,58,305/-, the Tribunal has given the following findings :- "now we shall take up the claims. The first claim is regarding refund of F. D. Rs. amounting to Rs. 2,58,305/ -. The respondents also agreed that the above sum in the form of F. D. Rs. is with them. Since we have held in Para 6. 4 supra that respondents action in terminating the contract under Clause 3 (C) of the agreement is not valid the respondents can not withhold this amount. Even otherwise it has been held that for imposing penalty the respondents must show that they have actually sustained any loss due to non-completion of work within the stipulated period. Reliance is placed on Ref. Case No. 46/88, decided on 17-10-1988 : B. Mishra v. Commissioner. In view of the above discussion the respondents are liable to return the F. D. Rs. amounting to Rs. 2,58,305 including interest accrued thereon to the petitioner. As regards claim for payment of earth work quantity without deduction of shrinkage allowance vide order sheet dated 8-6-1994 the petitioner has not pressed this claim for the reason given therein and therefore nothing is due to the petitioner on this count. In the final analysis the following claim of the petitioner is accepted and rest are rejected. (1) Release of security in the form of F. D. Rs. Rs. 2,58,305/ -. In the final analysis the following claim of the petitioner is accepted and rest are rejected. (1) Release of security in the form of F. D. Rs. Rs. 2,58,305/ -. Claim for pendente lite and postulate interest: The above sum of Rs. 2,58,305 is in the form of F. D. R. which an interest-bearing security. There is nothing on record to ascertain the date of expiry of the F. D. R. We have been consistently not allowing pendente lite and postulate interest on F. D. R. or any other interest-bearing securities and we find no reason to deviate from this view. Relief and cost: For the findings arrived at above we order and award that respondents shall release F. D. Rs. amounting to the petitioner. The respondents shall also pay proportionate cost to the petitioner and bear there own. Counsels fee fixed at Rs. 4,000/- or as certified whichever is less. " From the aforesaid it is quite vivid that the Tribunal by giving cogent and germane reasons had passed the award and we do not find any perversity of approach as it is founded on the documents on record. There is no error of jurisdiction and therefore, we are of the considered view that the present revision petition deserves to be and is hereby dismissed and the award passed by the Tribunal is maintained. Taking into consideration the facts and circumstances of the revision there shall be no order as to costs.