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2012 DIGILAW 279 (BOM)

Mahanagar Telephone Nigam Ltd. v. B. Bhamra Construction Co.

2012-02-07

ANOOP V.MOHTA

body2012
Judgment : 1. The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act,1996(for short, the Arbitration Act, 1996) and thereby challenged the Award dated 31st October 2009 passed by the sole arbitrator. 2. Learned Counsel appearing for the Petitioner fairly stated that their challenge is restricted to claim Nos.1,2, and 7. 3. There is no counterclaim or Petition filed by the Respondent so far as other claims are concerned. 4. The work order in question was issued to the Respondent on 29th March, 2004. The date of completion of the work was 17.10.2005 i.e. 18 months. For various reasons the work could not be completed within the basic stipulated period. It was extended from time to time by consent of the parties. The work was completed on 11.07.2007. So there was actual 20.8 months delay. As there arose dispute, therefore in view of the arbitration agreement between the parties, the matter was referred to the sole arbitration. 5. The relevant clause on which both the parties have made their rival submission is as under: “No escalations shall be payable for a work for which stipulated period is 18 months or less” 6. There is no dispute that by way of this agreed clause originally existing clause 51.1 got deleted. This must be with clear understanding between the parties that the work should be completed within 18 months onwards. Therefore, parties agreed that there shall be no escalation prices payable for a work for which stipulated period is 18 months onwards. There is nothing mentioned any where, what happens if 18 months period get extended by the consent of the parties. 7. There is no dispute that based upon the agreement between the parties, inspite of above clause it was extended from time to time, by consent of both parties. 8. Having extended the period beyond 18 months or more by consent, the escalation clause so added and referred above, losses, its importance. There was no other specified clause which restricts the Petitioner not to claim any amount on the basis of such situation in my view, also the Respondent contractor is entitled for escalation costs, as there was no agreed restriction to claim the same. 9. There was no other specified clause which restricts the Petitioner not to claim any amount on the basis of such situation in my view, also the Respondent contractor is entitled for escalation costs, as there was no agreed restriction to claim the same. 9. The learned arbitrator therefore considering this clause, and after going through the material placed on the record by the contractor granted the claim by adopting the formula of clause 51.1 which was admittedly deleted in the above circumstance. 10. Learned Counsel appearing for the Petitioner therefore submitted that clause 51.1, cannot be read in the contract as the same was never accepted by and between the parties. There is nothing on record to show that the said clause revived automatically. Learned Counsel for the Respondent also unable to point out any other provisions or clause in which this got revived in case the stipulated period got extended more than 18 months. But in absence of any other formula or material on record, while granting such award, the recognized formula (clause 51.1) in such type of contract, though was deleted, rightly adopted. Therefore, in my view, there is no illegality committed by the arbitrator while adopting the scheme for granting the award for the escalation as claimed. 11. Learned arbitrator has assessed the material and by applying the principle of clause 51.1 of general conditions of contact and awarded the amount by giving the reasons. The arbitrator has also considered the building cost index of CPWD and the cement/index cost adopted by the MTNL. The arbitrator has also considered details of index of price rise by adopting the procedure of clause 51.1, by referring to the various factors. The claimants have also submitted the supporting calculations/details. The arbitrator after hearing both the parties, including escalation, clarifications on the points, and by referring to the provisions of Section 73 of the Contract Act by giving quarterly intervals and adopting the formula by reducing value to 15% to allow for overheads and profit element as fixed charges. The arbitrator has considered variations in cost, excluding cement and steel, labour, steel, cement and he awarded the amount of Rs.63,24,879/. 12. Learned Counsel appearing for Petitioner apart from the submission that award could not have been granted on the basis of deleted clause, unable to point out that the Award is perverse and/or contrary to law. The arbitrator has considered variations in cost, excluding cement and steel, labour, steel, cement and he awarded the amount of Rs.63,24,879/. 12. Learned Counsel appearing for Petitioner apart from the submission that award could not have been granted on the basis of deleted clause, unable to point out that the Award is perverse and/or contrary to law. He also unable to point out any other reasonable method for the same. The adoption of this formula by the arbitrator, in my view, is well within the framework of law and record and cannot be stated to be unreasonable and/or contrary to law. The arbitrator has awarded the award by giving the detailed reason and by assessing documents placed on record which cannot be stated to be illegal and/or perverse. 13. So far as claim no.2 is concerned, the submission is made by the Petitioner that the arbitrator has not given any reason while granting the respective sub-claims. After hearing both the parties, I find that the arbitrator has given reasons to support/maintain the awards of the claim. The Petitioner if reduced the amount without assigning any reason, the reversal findings given by the arbitrator for want of such reasons from the department, and thereby maintained the figure so claimed originally cannot be faulted with. The Petitioner ought to have given the reason before deducting any amount. 14. Learned counsel appearing for the Petitioner has relied on the judgment to show that so far as claim no. 2 is concerned, the arbitrator failed to give the separate reasons. In my view, the reasons “so contemplated under the Arbitration Act or any other order means the reasons to grant and/or reject the award or order in totality. The court need to consider over all view of the matter. 15. With regard to the interest, the arbitrator has granted the interest from the date of first meeting dated 06.08.2008. In my view, considering the facts and circumstances, as the arbitrator, after considering the material placed on record, and after assessing the documents on record awarded the amount for the first time by this award dated 31st October, 2009, therefore, the grant of interest on the awarded amount from the date of first meeting is impermissible. In my view, considering the facts and circumstances, as the arbitrator, after considering the material placed on record, and after assessing the documents on record awarded the amount for the first time by this award dated 31st October, 2009, therefore, the grant of interest on the awarded amount from the date of first meeting is impermissible. Learned counsel for the Respondent fairly conceded to this position that the arbitrator is empowered to grant interest from the date of granting compensation and not prior to that date. Therefore I am inclined to modify the grant of interest on the principle amount awarded at the rate of 10% from 31st October, 2009 instead of 06.08.2008 till realization. 16. Learned counsel appearing for the Petitioner submits that there is no specific agreed clause of interest and therefore there is no question of granting any interest to the respondent is unacceptable. The party if agrees not to claim any interest and/or not entitled of interest in that case, such submission on such clause prevail and not otherwise. In any case there is no agreement between the parties restricting the claim of the interest. The parties are entitled for the reasonable interest which is available under the law. Therefore, the grant of interest as modified above, is also well within the purview of law, needs no interference. 17. Resultantly, the Petition is partly allowed and the Award is modified to the above extent. No cost.