9911796707
TMI Blog2007 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001. On the contrary, both the courts below on facts have found that Jala Nigam had consented to the arbitration of the disputes by the Chief Engineer. Jala Nigam had participated in the arbitration proceedings. It submitted itself to the authority of the Arbitrator. The Arbitrator has awarded Rs.42,000/- per day for the period 1.2.94 to 17.12.94 and from 1.6.95 to 31.12.95 excluding the period 18.12.94 to 31.5.95 and from 1.1.96 to 12.11.96. On this basis the idling charges awarded by the Arbitrator was arrived at Rs.1.47 crores. It is contended that the contractor has not led any evidence to show the existence of the machinery at site and, therefore, he was not entitled to idling charges. We are of the view that the Award of the Arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of the arbitral tribunal to adjudicate upon the claims made by the contractor (respondent no.1), Award dated 25.6.2000 published on 14.11.2000 was a nullity. The second issue is regarding the merits of the claims made by the contractor. The facts giving rise to the above civil appeal are as follows. On 27.11.93 Agreement bearing No.41/93 was entered into between Jala Nigam and the claimant (respondent no.1) concerning construction of Mulawad Lift Irrigation Scheme. The contract was for 36 months. It was to be completed by 26.11.96. In the course of execution of the contract, Jala Nigam entrusted to the contractor, certain extra work vide two supplementary agreements dated 11.6.96 and 7.11.98. The contract was extended up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contractor shall proceed with the execution of the work with all due diligence. (c) In case the decision of the Chief Engineer is not acceptable to the Contractor, he may approach the Law Courts at (*) for settlement of dispute after giving due written Notice in this regard to the Chief Engineer within a period of ninety days from the date of receipt of this Written Notice of the decision of the Chief Engineer. (d) If the Chief Engineer has given written Notice of his decision to the Contractor and no written Notice to approach the Law Court has been communicated to him by the Contractor within a period of Ninety days from receipt of such notice, the decision shall be final and binding upon the Contractor." By letter dated 26.3.98 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uoted Clause 29 of the Contract was not an arbitration clause and, therefore, the proceedings before the Arbitrator stood vitiated for lack of jurisdiction. He contended that the proceedings before the Arbitrator were without jurisdiction for want of arbitration agreement which cannot be cured by appearance of the parties, even if there was no protest or even if there was a consent of Jala Nigam, since consent cannot confer jurisdiction and, therefore, the impugned Award was null and void. Learned counsel submitted that though the plea of "no arbitration clause" was not raised in the counter statement before the Arbitrator, such a plea was taken by Jala Nigam in C.M.P. No.26/99 filed by the contractor and, therefore, Jala Nigam was entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be now allowed to contend that Clause 29 of the Contract did not constitute an arbitration agreement. Before concluding on this issue, one clarification needs to be mentioned. On 26.7.2005 a three-Judge Bench of this Court has referred the question involving interpretation of Clause 29 of the Contract to the Constitution Bench in the case of M/s. P. Dasaratharama Reddy Complex v. Government of Karnataka and Another \026 Civil Appeal No.1586 of 2004. Placing reliance on the said order, learned counsel for Jala Nigam submitted that the hearing of this civil appeal be postponed pending disposal of the above reference by the Constitution Bench. We do not find any merit in this argument. As stated above, the plea that Clause 29 of the Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration period, for the pendente lite period and future interest be reduced to 9%. As far as idling charges are concerned, the Arbitrator has awarded Rs.42,000/- per day for the period 1.2.94 to 17.12.94 and from 1.6.95 to 31.12.95 excluding the period 18.12.94 to 31.5.95 and from 1.1.96 to 12.11.96. On this basis the idling charges awarded by the Arbitrator was arrived at Rs.1.47 crores. It is contended that the contractor has not led any evidence to show the existence of the machinery at site and, therefore, he was not entitled to idling charges. We are of the view that the Award of the Arbitrator is fair and equitable. He has excluded certain periods from calculations, as indicated above. We have examined the records. The delay took pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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