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2013 DIGILAW 348 (CHH)

SCL Infratech Limited v. State of C. G.

2013-12-03

SANJAY K.AGRAWAL

body2013
ORDER Sanjay K. Agrawal, J. 1. This is revision petition under Section 19 of Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (for short "the Act, 1983") challenging the award dated 14-9-2012 passed by Chhattisgarh Madhyastham Adhikaran (for short hereinafter referred as 'Tribunal'), Raipur in Reference Case No. 11/2008 by which petitioner's reference petition under Section 7 of the Act, 1983 has been rejected by the learned Tribunal holding the same as barred by limitation. Brief facts necessary for disposal of this revision are as under:-- 1.1. The petitioner herein has filed reference petition under Section 7 of the Act, 1983 stating, inter alia, that the applicant has entered into an agreement No. 1/D.L. 2002-2003 for the work of diversion for which work order was issued on 10-10-2002 and claimed ` 4029.26 lakhs along with the interest towards idleness of machinery, loss of manpower, extra cost, price adjustment etc. The said application was filed on 14-8-2008 before Tribunal by the petitioner. 1.2. The respondents/State appeared before Tribunal and filed its reply and raised an objection that the reference petition is not maintainable filed beyond the period of limitation and further raised an objection that the petitioner has received the final bill in full and final satisfaction of his claim. Thus, the reference petition deserves to be dismissed. 1.3. The learned Tribunal vide the impugned order dated 14-9-2012 dismissed the reference petition filed under Section 7 of the Act, 1983 finding inter alia that by virtue of Clause 4.37 of the agreement, the reference is barred by the limitation and further held that the petitioner has received the final bill in full and final satisfaction of his claim. 2. Mr. Amit Sahni and Mr. 2. Mr. Amit Sahni and Mr. Sanjay S. Agrawal, learned Counsels appearing for the petitioner/contractor would submit that the award passed by the learned Tribunal holding that the revision petition is barred by the limitation is perverse, illegal in view of the fact, that the Clause 4.37 of the agreement is not applicable to the petitioner and would submit that the Clause 4.48.2 of the agreement would be applicable and as such the petitioner has already raised a dispute before the Chief Engineer and the Chief Engineer has rejected this claim and as per Clause 4.48.2 within a period of 28 days from the receipt of the decision of the Chief Engineer, the reference petition was filed before the Tribunal for resolution of dispute and therefore, the award of Tribunal dismissing reference petition deserve to be set aside and matter be remitted to the Tribunal for hearing and disposal of the reference petition in accordance with law on merits. 3. Mr. Vinay Harit, learned Deputy Advocate General with Mr. Anant Bajpai appearing for the State while supporting the award passed by the Chhattisgarh Madhyastham Adhikaran would submit that the award passed by the Tribunal is in accordance with law as the petitioner has failed to make his claim as provided in Clause 4.37 of the agreement within a period of one month of occurrence of dispute before the Engineer-in-Charge and therefore, reference petition has rightly been dismissed by the Tribunal. 4. I have heard learned Counsels for the parties and considered the rival submissions made therein and carefully perused the papers available. 5. This Court while hearing this revision petition at the stage of admission, passed the following order on 17-1-2013 as under:-- It appears that the Tribunal have essentially rejected the claim petition on the ground of its being barred by limitation. In other words, the Tribunal did not examine the merits and demerits of the controversy, because, as observed supra, it essentially rested its decision on the ground of limitation. In our view, in the event of decision being reversed, the matter may entail remand to the Tribunal for deciding the issue on merits. 6. The question that falls for consideration is whether learned Tribunal is justified in holding that reference petition filed by petitioner was barred by limitation and thereby justified in dismissing the reference petition? 7. In our view, in the event of decision being reversed, the matter may entail remand to the Tribunal for deciding the issue on merits. 6. The question that falls for consideration is whether learned Tribunal is justified in holding that reference petition filed by petitioner was barred by limitation and thereby justified in dismissing the reference petition? 7. In order to appreciate the controversy between the parties, it will be pertinent to notice firstly:-- Clause 4.37. Time limit for unforeseen disputes.-- Any dispute should be brought to the notice of the Engineer-in-Charge in writing within one month of the occurrence of such disputes. 7.1. A bare perusal of Clause 4.37 would show time limit is prescribed in the agreement for "unforeseen dispute". The dictionary meaning of "unforeseen" is not foreseen. The expression "unforeseen disputes" in relation to performance of the contract or its breach means those claims which arise out of the situations or the circumstances "unforeseen", "unexpected", or which are unprovided for in the contract and for which the contract makes no provision. Such disputes may be of occurrence of loss due to act of God or for force majeure. The disputes, which arise out of breach of the contract or flow from the terms of the contract cannot be considered as "unforeseen disputes". 7.2. The Division Bench of the Madhya Pradesh High Court in a decision reported in 1997 (1) MPLJ 606 had occasion to define, "unforeseen claims" arising out of the contract and held as under:-- Para 7. 4.3.15. Time limit for unforeseen claims.-- Under no circumstances whatever, shall the contractor be entitled to any compensation from Government on any account unless the contractor shall have submitted claim in writing to the Engineer-in-Charge within one month of the clause of such claim occurring. From a bare look at the Clause 4.3.15, it is clear that it relates to 'unforeseen claims' of which claim in writing is to be submitted within one month to the Engineer-in-Charge. The words 'of the clause of such claim occurring' clearly indicate the nature of the claims described in the heading. The dictionary meaning of 'unforeseen' is not foreseen. The expression 'unforeseen claims' in relation to performance of the contract or its breach means those claims which arise out of the situations or the circumstances 'unforeseen' 'unexpected' or which are unprovided for in the contract and for which the contract makes no provision. The dictionary meaning of 'unforeseen' is not foreseen. The expression 'unforeseen claims' in relation to performance of the contract or its breach means those claims which arise out of the situations or the circumstances 'unforeseen' 'unexpected' or which are unprovided for in the contract and for which the contract makes no provision. W.J. Talem Ltd. v. Gamboa, (1939) I KB 132. Such claims may be of occurrence of loss due to acts of God or for force majeure, such as strikes, breakdowns, lock-out, riots, or other unforeseen circumstances for which parties to the contract did not contemplate and for them no provision is made in the contract. The claims which arise out of breach of the contract or flow from the terms of the contract cannot be considered as 'unforeseen claims' and to such claims the clause fixing a period of one month for submitting the claim from the date of clause or of occurring of the clause will not apply. 8. Thus, in light of the decision, Madhya Pradesh High Court, it quite clear that Clause 4.37 of contract relates only to unforeseen dispute where loss has occurred due to fire, rains, floods, earthquake and other acts of God or force majeure, such as strike lock-out, which could not be reasonably foreseen at the time of entering into contract. The disputes which are incidental to the breach of the contract and flow from the terms of the contract cannot be said to be the unforeseen disputes and for the disputes raised by the petitioner, the terms of Clause 4.37 of the contract would not be applicable. The petitioner was not supposed to submit claims to Engineer-in-Charge in writing within one month of the occurrence of such disputes. 9. This takes me to the next question, which clause of the contract would be applicable to invoke the jurisdiction of Tribunal, the petitioner has made the following claim in his reference petition, which are as under:-- Amount Rs. In lakhs Claim No. I Idleness of Machinery 1,761.21 Annexure A Claim No. II Loss of Manpower 36.00 Annexure B Claim No. III Loss of profit on the work that could be done during the period of idleness of machinery. 688.57 Annexure C Claim No. IV Extra cost due to additional items of works. 591.53 Annexure D Claim No. V Price adjustment 951.95 Annexure E Total Claims 4,029.26 10. 688.57 Annexure C Claim No. IV Extra cost due to additional items of works. 591.53 Annexure D Claim No. V Price adjustment 951.95 Annexure E Total Claims 4,029.26 10. All the aforesaid claims have been made relating to dispute which arises out of the contract entered into between the parties alleging breach on the part of the State Government and claims flows from the terms of the contract and said claims have not arisen out of unforeseen disputes between the parties. 11." Clause 4.48, provides for settlement of claims and disputes:-- 4.48.2. Except where otherwise specified in the contract, for the claim valued at Rs.50,000/- or more the decision of the Chief Engineer for the time being in respect of all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereto before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter of thing whatsoever, in any way arising out of, relating to the contract, designs, drawings, specifications, estimates, instructions, orders of those conditions or otherwise concerning the work of execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be final provided that the Chief Engineer shall be before giving his decisions in writing in the matter gives an opportunity of being heard to the parties to the contract. If any party to the contract is dissatisfied with the final decision of the Chief Engineer in respect of any matter he may within 28 days after receiving notice of such decision. Arbitration Tribunal constituted under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1982 (No. 2 of 1983). 12. Thus, the aforesaid Clause 4.48.2 of the agreement is applicable to the claim/dispute raised by the petitioner herein as it has already been held that Clause 4.37 would not be applicable and it has wrongly been held applicable by the learned Tribunal. In accordance with Clause 4.48.2 of the agreement petitioner has firstly raised his dispute in accordance with the said clause on 27th March, 2000 vide Exh. In accordance with Clause 4.48.2 of the agreement petitioner has firstly raised his dispute in accordance with the said clause on 27th March, 2000 vide Exh. P-4, the Chief Engineer being the Final Authority has considered the dispute/claim of the petitioner and rejected the claim by order dated 16-7-2008 (Annexure P-5), which was received by the petitioner on 21-7-2008 and, thereafter, in accordance with proviso to Clause 4.48.2, the petitioner, within 28 days from the receipt of decision, has filed the instant reference petition before the Chhattisgarh Madhyastham Adhikaran Adhiniyam on 14-8-2008. Thus, the reference petition filed in accordance with the proviso to Clause 4.48.2 within 28 days from the receipt of decision of the Chief Engineer and the Clause 4.37 of the agreement not being applicable, learned Claims Tribunal has committed a grave legal error in dismissing the same holding the same to be barred by limitation under Clause 4.37 of the agreement. Thus, it is held that the reference petition filed by the petitioner in accordance with the proviso to Clause 4.48.2 is within the period of limitation and consequently, the reference petition could not be dismissed by the learned Arbitration Tribunal holding it is beyond the period of limitation and the impugned award passed by the Tribunal on 14-9-2012 in Reference Case No. 11/2008 deserves to be set aside. 13. Resultantly, the impugned award dated 14-9-2012 passed by Tribunal is hereby set aside and Reference Petition No. 11/2008, SCL Infratech Limited v. State of Chhattisgarh and another, is hereby restored to the original file of Chhattisgarh Madhyastham Adhikaran, Raipur for hearing and disposal in accordance of law on merits. Parties are directed to appear before the Chhattisgarh Madhyastham Adhikaran, Raipur on 20th December, 2013. Considering the fact that reference petition was filed on 14-8-2008, it is directed that the Tribunal will do well to decide the reference petition expeditiously preferably within a period of seven months from the date of receipt of certified copy of this order. No order as to cost.