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2013 DIGILAW 983 (MP)

M. S. Khurana v. Bhopal Vikas Pradhikaran

2013-08-20

R.S.Jha, Rajendra Menon

body2013
ORDER Jha, J.1. The applicant has filed this revision being aggrieved by the award dated 30.6.1999 passed by the M.P. Arbitration Tribunal, Bhopal (hereinafter referred to as ‘the Tribunal’) in Reference Case No. 135/1993. 2. The brief facts, leading to the filing of the present revision, are that the applicant was awarded contract for construction of Academic Complex of the Indian Institute of Forest Management with kitchen/dining block including internal water supply, sanitary and electrical fittings at Bhopal. The probable amount of contract was Rs.1,53,00,000/-. The accepted tender rate was 73.80% above C.S.R. The work order was issued on 6.12.1985 by the Executive Engineer and the work was required to be executed within 24 months which period was to commence after 15 days of issuance of the work order. The stipulated date of completion of the work order was 20.12.1987 including rainy season.The work was actually completed by the applicant on 14.5.1988 after a delay of four months and 25 days, on account of which certain payments were withheld. 3. The applicant, being aggrieved, raised a dispute alleging that the delay occurred on account of the fact that the respondents committed default and delay in handing over the site of faculty building, foundation plan for accounts and administrative building, mobilization advance, and created obstruction in the layout of the building in foundation work, issued incomplete layout plan, delayed decision making, gave inadequate supply of water, changed the specifications, issued short supply of cement and committed delay in recording measurements and making payment of running bills and final bills. The respondents did not accept the claim of the applicant. 4. Being aggrieved, the applicant raised a dispute before the authorities of Rs. 7,45,462.00 towards recovery made by the respondents by reducing rate of non-C.S.R items after sanction by the competent authority; Rs. 1,20,550.00 towards claim for wrongfully withheld amount and interest for delayed payment of final bill, etc.; Rs. 2,67,467.00 towards claim for difference in escalation charges payable and already paid without adding the cost of cement; and Rs. 9,48,300.00 for compensation on account of delay and breach of contract by the respondents. Thus, a total claim of Rs. 20, 81, 780/- was made by the applicant. 5. 2,67,467.00 towards claim for difference in escalation charges payable and already paid without adding the cost of cement; and Rs. 9,48,300.00 for compensation on account of delay and breach of contract by the respondents. Thus, a total claim of Rs. 20, 81, 780/- was made by the applicant. 5. As the claim was rejected by the respondents, the applicant raised a dispute before the Arbitration Tribunal which has been partly allowed by the Tribunal by the impugned award dated 30.6.1999 and while claims No.1, 3 and 4 have been rejected, claim No. 2 to the extent of Rs. 13,000/- has been partly allowed with interest and accordingly a sum of Rs. 96,251/- has been awarded to the applicant. The applicant, being aggrieved, has filed the present revision before this Court. 6. Though several issues have been raised by the learned senior counsel for the applicant, he has confined the arguments only to the extent of claim No. 1 for Rs. 7,45,462.00 which relates to the claim for recovery made by reducing rate of non-C.S.R items after sanction by the competent authority. 7. It is submitted by the learned senior counsel for the applicant that the architectural consultant changed the specifications of the construction frequently as a result of which several non-C.S.R items were required to be executed by the applicant for which rates were required to be analyzed as per market rates subject to approval by the Engineer-in-Chief. It is submitted that under Clause-13 of the General Conditions of the contract, a provision for approval of rates for non-C.S.R items had already been made according to which the non-C.S.R items could either be executed by the applicant himself in case the rates are approved or accepted by him or in case the rates were not acceptable, the respondents would get them executed through some other agency. It is submitted that the rates proposed by the applicant were in fact accepted by the respondents vide order dated 26.9.1986, 23.4.1987 and 28.5.1987 and payment in the running bill for this extra non-C.S.R items were also made by the respondents, however, subsequently the Engineer-in-Chief or the Chief Engineer reopened the entire matter and reduced the rates and made recovery of the extra amount paid to the applicant which is contrary to law. 8. 8. It is submitted by the learned senior counsel for the applicant that once the rates have been approved then, in view of Clause-13 of the contract, the authorities had no power to withdraw and reduce the same. It is submitted that the Tribunal, by not accepting the aforesaid claim of the applicant, had committed apparent illegality which warrants interference by this Court. 9. Having heard the learned senior counsel for the applicant, it is observed that the Arbitration Tribunal has extensively discussed the aforesaid aspect in paras 9, 10 & 11 of the award. The Tribunal, after analyzing the conditions as well as the clauses of the agreement, has recorded a finding to the effect that the present case is not one of reduction of the sanctioned amount but is a case of correction of mistake. The Tribunal in para-11 has recorded a finding to the effect that the respondents have not made any reduction of the cost under any sub-head of material, labour or machinery while sanctioning the reduced rate for non-C.S.R items but has only curtailed the rate of sundry overhead charges and contractors profit to the applicable 13% in place of the wrongly sanctioned 25%. 10. The Tribunal has also recorded a finding that the respondents had wrongly permitted payment of contractor’s profit, sundry expenses at the rate of 25% by applying the Irrigation Manual whereas the P.W.D Manual was actually applicable to the applicant’s case which provided for a maximum of 13% towards contractor’s profit and sundry expenses. The Tribunal has also gone on to record a finding to the effect that when the Chief Engineer noticed the aforesaid mistake, he immediately ordered for its correction by reducing the contractor’s profit and sundry expenses to 13% and ordered recovery of the excess amount paid to the applicant. 11. From the aforesaid analysis, it is clear that the present case is not one of reduction of rates of contract but is a case of correction of the rate of contractor’s profit and sundry expenses to 13% from 25% which was legally and contractually permissible and that the respondent authorities recovered the excess paid to the applicant after correction of the mistake committed by the authorities and, therefore, no fault can be found with the same. For the aforesaid reasons the finding recorded by the Tribunal is in accordance with law and does not warrant any interference by this Court. No other ground was raised or argued before this Court. 12.In view of the aforesaid, we do not find any perversity or manifest illegality in the impugned order dated 30.6.1999 passed by the Arbitration Tribunal warranting interference in the present revision petition. 13. The revision petition, filed by the applicant, being meritless is accordingly dismissed. In the facts of the case there shall be no order as to the costs.