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2024 DIGILAW 1634 (GUJ)

Union Of India v. P. J. Sood

2024-07-30

PRANAV TRIVEDI, SUNITA AGARWAL

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ORDER (Sunita Agarwal, CJ.) : Heard the learned counsel appearing for the appellant. 2. The appeal is delayed by 201 days. The explanation offered for the condonation of delay in filing the appeal is not to the satisfaction of the Court. 3. However, proceeding on the merits, this appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act, 1996”) has been filed seeking for setting aside of the Arbitral award dated 11.08.2009 with an assertion that the judgment and order dated 15.04.2023 passed by the 4th Additional District Judge, Vadodara in rejecting the application under Section 34 of the Act, 1996 is illegal and perverse. 4. To assail the Arbitral award, the submission of the learned counsel for the appellant is that the learned Arbitrator has erred in accepting the claim of the contractor for revision of bills and payment of revised calculation submitted by the claimant after making construction in deviation with the details sketch given in the tender document, which shows that the height of the RCC box was required to be maintained at 3.92 meters. 4.1. It was sought to be argued by the learned counsel for the appellant that as per the tender document, the Sketch of BR 451/2 contains the description of specifications of work in a manner that the RCC box section of internal size 7.5 x 4.52 meters was to be constructed. The rate quoted by the contractor against the sketch indicated in the tender document could not have been revised, on the premise of change in the dimensions, mentioned in the Scope of Work and description of items. The submission is that the learned Arbitrator has committed a patent error of law in interpreting the Scope of Work and description in a manner that it amounts to rewriting of the contract between the parties. 4.2. The submission thus, is, that the Arbitral award is to be set aside. The Court concerned, while dealing with the application under Section 34 of the Act, 1996 has failed to take into account the said flaw in the award and hence the order of rejection of the application under Section 34 of the Act of 1996 is also liable to be set aside. 5. The Court concerned, while dealing with the application under Section 34 of the Act, 1996 has failed to take into account the said flaw in the award and hence the order of rejection of the application under Section 34 of the Act of 1996 is also liable to be set aside. 5. Testing this submission of the learned counsel for the appellant, we are required to note the finding returned by the learned Arbitrator in the impugned award, with respect to the nature of claim, i.e. extra rate for extra height of the box. It was noted by the learned Arbitrator that during design/drawing stage of the work, to suit the respondent’s (the appellant herein), General Arrangement Drawing and Instructions, the claimant contractor was made to develop designs and drawings for the RCC box section of internal size of 7.5 meters x 4.52 meters. While submitting designs and drawings to the appellant for approval, the claimant contractor pointed out that there was some variation in the size of the box between the tendered item and the drawings furnished by the Deputy Chief Engineer (B), Bulsar implying that the tendered items will have to be modified because of the variations of the internal height. The Sketch BR 451/2 referred to in the description of tendered item did not indicate the internal height of RCC box in a direct manner. The height could be derived by adding together other indicative dimensions and accordingly, internal height of the box could be works out as 4.52 meters. It is further noted by the learned Arbitrator that the appellant herein/respondent, taking advantage of the words “as per Sketch no. BR 451/2; in the description of item 1/NS, tried to pay the rate as per 1/NS, which was for 3.92 meter height of the box, for the actually constructed 4.52 meters height of the box. The dispute arose on account of the said fact and the claimant/contractor protested and wanted a modified rate to be settled for the higher box. 6. It is also noted that the Contract Agreement Section II under “Scope and Details of Work” in paragraphs ‘1.4.’ and ‘1.4.1.’ describes the work as follow :- “1.4. Description of work. 1.4.1. The existing bridge (1 x 6.1 m) is proposed to be widened by providing 2 Nos. 7.5 m x 3.92 m (internal size) RCC Boxes, one on either side of the subway”. Description of work. 1.4.1. The existing bridge (1 x 6.1 m) is proposed to be widened by providing 2 Nos. 7.5 m x 3.92 m (internal size) RCC Boxes, one on either side of the subway”. It was noted that there is no mention of any Sketch Br 541/2 in this.” 7. It is also noted that there is a mention in paragraph ‘11’, under heading ‘Figures Dimensions’ etc., of ‘Part-III’ Section [d] of contract a special dimensions or direction in the specifications shall supersede all else, and thus, 3.92 meters was a special dimension for the internal height of the RCC box, which superseded all else including the Sketch 451/2. It was also noted by the Tribunal that the appellant/respondent was directed to produce certain files for throwing some light on this aspect, specifically in their letter no. 31 dated 03.01.2004, so as to understand the reason as to how and why the internal size of the box was stipulated as 7.5 meters x 3.92 meters creating a major discrepancy when only a reference to Sketch 451/2, would have sufficed in the description of item 1/NS of the Schedule. However, the appellant did not produce any file before the Tribunal. It was noted that no correction slip regarding this at the tender stage was issued and hence, it was opined that neither the respondent nor any of the tenderers took this as a discrepancy because sketch after all was not a drawing to be followed for construction. It was opined that the word ‘sketch’ itself implied that it was only for general guidance for explaining concept as design and preparation of drawing for construction was to be done by the contractor, as per item 1/NS to start with. The specific dimension mentioned in the Scope of Work and description of item 1/NS as 3.92 meter for internal height of the box, therefore, overrides and supersedes all else. 7.1. It was, thus, concluded that for the increase in the internal height of the RCC box, over and above the item 1/NS from 3.92 meters, modified/additional rate should have been settled in the beginning itself by the appellant, in response to the claimants persistent demand, which was not done. 7.1. It was, thus, concluded that for the increase in the internal height of the RCC box, over and above the item 1/NS from 3.92 meters, modified/additional rate should have been settled in the beginning itself by the appellant, in response to the claimants persistent demand, which was not done. The Tribunal has thus, opined that the rate of Rs.1,46,001 as against item No. 1/NS quoted by the claimant was for RCC box of internal size 7.52 meters x 3.92 meters and none other. 7.2. This finding returned by the Tribunal to allow the claim of the claimant contractor for extra rate for extra height of the box is sought to be assailed before us with the assertion that it was beyond the scope of jurisdiction of the Tribunal to take any exception to the details mentioned in the Sketch BR 451/2 which was part of the tender conditions. The height of the RCC box was to be derived by adding together other indicative dimensions, which clearly indicated the internal height of the box to be worked out as 4.52 meters. The description in the Scope of Work and description as part of the contract agreement, could not have overridden or superseded the description given in Sketch BR 451/2. The appellant, therefore, rightly refused the demand of the claimant contractor for payment of extra rate, inasmuch as, the contract itself contemplated the internal size of RCC box as 7.5 meter x 4.52 meter. 8. It was urged that moreover, the demand made by the contractor for extra rate was never accepted. The Tribunal has, thus, erred in recording a factual finding of the internal size of RCC box being 7.5 meters x 3.92 meters as per the Scope of Work and description of item. 9. We find inherent fallacy in the argument of the learned counsel appearing for the appellant for the simple reason that from the description recorded in paragraph ‘3.8’ of the Arbitral award, it is evident that the contract agreement itself prescribed the scope and details of the work in paragraph ‘1.4’ and ‘1.4.1’ extracted hereinbefore. No exception could have been taken by the learned Arbitrator to the said description of construction which was mentioned in the contract/agreement itself. No other view is possible. No exception could have been taken by the learned Arbitrator to the said description of construction which was mentioned in the contract/agreement itself. No other view is possible. Moreover, within the scope of interference under Section 37 of the Act 1996, even if this Court reaches at an alternative view, it cannot be said that the view taken by the Arbitral tribunal is perverse or is not substantiated from the material on record. No perversity could be demonstrated in the Arbitral award. 10. For the above, the appeal stands dismissed, both on the ground of unexplained delay as well as on merits. Consequently, the connected Civil Application for stay also stands disposed.