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TMI Blog2011 (5) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure for dispute resolution prescribed under clauses 24 and 25 had been followed by the respondent. The aforesaid issue arises in relation to claim Nos. 1 and 4 alone, as these are the only substantive claims allowed by the arbitral tribunal, apart from award on costs. Clauses 24 and 25 of the General Conditions of Contract, and Clause 3 of the Special Conditions of Contract read as follows:- ?24. Disputes 24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken, the decision shall be referred to the Dispute Review Expert within 14 days of the notification of the Engineer?s decision. 25. Procedure for Disputes 25.1 The Dispute Review Expert shall give a decision in writing within 28 days of receipt of a notification of a dispute. 25.2 He shall be paid daily at the rate specified in the Contract Data together with reimbursable expenses of the types specified in the Contract Data and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Dispute Review Expert. Either party may refer a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The submission of learned counsel for the petitioner is that the respondent referred its dispute qua claim no.1 to the Engineer for his decision on 19.05.2003. The Engineer rejected the said claim on 26.05.2003. It is argued that under clause 24.1, upon the said decision being communicated to the respondent, the respondent ought to have sought a reference of the decision to the Disputes Review Expert (DRE) within 14 days of the notification of the Engineers decision. However, the respondent did not do so, and on 19.06.2003 once again sought to raise the said claim before the Engineer. In its communication the respondent called upon the Engineer to correlate his decision to the contract agreement conditions which bind the parties. The Engineer again rejected the said claim of the respondent on 23.06.2003. 5. For the sake of completeness, I may note that this claim of the respondent pertained to consumption of larger quantities of cement etc. on account of change in the curb design. According to the respondent, the BOQ did not contemplate the provision of a channel curb and the contract between the parties only contemplated the construction of an ordinary curb whereas the working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the arbitral tribunal. Mr. Verma submits that the respondent had submitted its revised calculation of the amounts claimed as advised by the arbitral tribunal. In this regard he places reliance on the communication dated 08.09.2008 addressed to the arbitral tribunal, with copy to the petitioner. This communication has not been controverted by the petitioner. He submits that it is open to a party to seek amendment of its claim before the arbitral tribunal under Section 23 of the Act, and this provision of the Act had also been invoked while seeking amendment of the amounts claimed in respect of these aforesaid two claims. Mr. Verma further submits that the petitioner possibly cannot have any grievance to the amendment of claim no.4 as, on each occasion, the amount claimed was successfully reduced and the learned arbitral tribunal has allowed a much smaller amount of only about 0.39 crores as against the finally amended claim of about ₹ 1.61 crores. 8. In her rejoinder, learned counsel for the petitioner has further elaborated this ground founded upon clauses 24 and 25 of the General Conditions of the contract. 9. Having heard learned counsel for the parties, I am of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a personal hearing may not be necessary or called for, as and when a Contractor raises an issue or a claim before the engineer, the engineer cannot arrive at a decision which may be wholly non-speaking, and does not consider the Contractors submission. In the present case, in its communication dated 26.05.2003, all that the Engineer stated while rejecting the respondent?s claim was ?you have executed the work as per working drawing No.NHAI/NS21(MP)NH3/Test/01 dated July 2000 to the tune of about 60% of BOQ amount and payment is made accordingly. Your claim cannot be considered.? 10. Upon receiving such a cryptic response from the Engineer, in my view, the respondent-Contractor was correct in its conduct in again writing to the Engineer on 19.06.2003 to convey its own point of view in relation to its claim and to seek the response of the Engineer in the light of the contract agreement conditions. The contractor is not expected to keep approaching the DRE on every small or big decision that the Engineer may take. In fact, it would be highly premature for the contractor to straightway approach the DRE in a case like the present rather than having a meaningful correspondence with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or decrease the amount claimed under a particular claim, therefore, does not need to be agitated before the Engineer or the DRE as the respective stands of the parties already stand taken, and the fact that the matter is already referred to arbitration shows that both parties are at variance in relation to the claims referred to arbitration. Pertinently, in this case the DRE opined in favour of the petitioner in relation to the claim No. 4 (which was dispute issue No. 6 before the DRE). Therefore, there was no purpose in again going back to the Engineer or the DRE only on account of a change in the quantification of claim No. 4 which corresponded to dispute issue No. 6 before the DRE. The power of the Arbitral Tribunal to allow amendment of the claim is preserved by the Act. I, therefore, reject the submission of the learned counsel for the petitioner that the amendment of the claimed amount required the respondent to re-invoke clauses 24 and 25 of the General Conditions of Contract and the amount could not have been amended before the Arbitral Tribunal. 14. For all the aforesaid reasons, I find no merit in this petition and dismiss the same. - - TaxTMI - TMITax - Indian La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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