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TMI Blog2015 (2) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed that no extended stay compensation is required to be paid. Under clause 42.1.4 it was expressly mentioned that “Bidder to note that in case they don't indicate the rate for extended stay compensation as per proforma, provisions of clause No.42.0 will not be applicable to them”. According to the respondent in the relevant proforma relating to “Compensation for Extended Stay”, the petitioner had mentioned/quoted “NIL”. Insofar as the claim of payments for additional works is concerned, according to the respondent, clause 91.0 of the GCC deals with such claims. Clauses 91.1 and 91.2 contemplate that such claims will be verified by the Engineer-in-charge whose decision will be final. The respondent further states that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be by way of arbitration. Accordingly, the claims made by the petitioner for payment of additional works under both the contracts are referred to arbitration by Shri Justice M.M. Kumar, Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator. Arbitration petition partly allowed. - Arbitration Case (Civil) No. 36 of 2014, Arbitration Case (Civil) No. 38 of 2014 - - - Dated:- 12-2-2015 - Ranjan Gogoi,JJ. JUDGMENT 1. Both these applications under Section 11(6) of the Arbitration and Conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent did not make available to the petitioner the Construction Right of use and permits in terms of Clause 28 of the Special Conditions of Contract (hereinafter referred to as the SCC ). According to the petitioner, the respondent did not have the necessary work fronts with respect to SV station work. Furthermore, the petitioner has alleged that the respondent failed to provide necessary engineering inputs. Besides, there were frequent modifications with respect to drawings, extra work and delays in providing free issue materials. All these led to substantial delays in the execution of the works, such delay being attributable solely to the respondent. 6. According to the petitioner, on account of the delays due to the aforesaid reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The claims made by the petitioner have been resisted by the respondent by filing separate counter affidavits in both the cases. A reading of the affidavits filed by the respondent indicate that insofar as the claim for extended stay compensation is concerned, the respondent contend that the said claim does not give rise to any arbitrable issue inasmuch as under clause 42.1.1 the bidder is required to mention the rate for extended stay compensation per month in the Priced Part . Under Clause 42.1.2 in case the bidder did not indicate such rate it is to be presumed that no extended stay compensation is required to be paid. Under clause 42.1.4 it was expressly mentioned that Bidder to note that in case they don't indicate the rate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge and in terms of clause 91.2 of the GCC such a decision(s) must be construed to be final and binding between the parties and therefore would stand excluded from arbitration. 10. There can be no manner of doubt that before exercising the power under Section 11(6) of the Arbitration Act to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract. The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trable dispute so as to permit/require reference to arbitration under clause 59. 12. The second issue i.e. claim for payment of additional works however would stand on a different footing. Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by the Engineer-in-chief. The decision of the Engineer-in-chief is final and binding. The finality attached to such a decision cannot be an unilateral act beyond the pale of further scrutiny. Such a view would negate the arbitration clause in the agreement. Justifiability of such a decision though stated to be final, must, be subject to a process of enquiry/adjudication which the parties in the present case have agreed would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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