9911796707
TMI Blog2020 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining claim of the appellant was rejected. In that view the consideration in the instant appeal pertains to the Claim Nos.2, 3, 8, 12 and 16 as put forth and also the issue relating to the grant of interest which arose for consideration under Claim No.19. 2. For the purpose of convenience and clarity the parties would be referred to in the rank assigned to them in the arbitration proceedings. Accordingly, the appellant herein would be referred to as the claimant, while the respondents would be referred to as the opposite party. 3. The proceedings in question arises relating to an Award passed under the Arbitration Act, 1940 ('Act 1940' for short). The claimant and the opposite party had entered into a contract agreement dated 05.02.1985 for construction of Sutlej Yamuna Link Canal (Punjab) and in that regard to carry out the earth work, drainage behind lining and cement concrete lining of Raech RD 71.50 to 72.50 kms. The estimated cost of the project was at Rs. 31 lakhs and the contract amount for the work was fixed at Rs. 59,86,732/. The work concerned was to be executed in eight months. 4. In respect of the said contract, the claimant contended that during execution, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Punjab) and set aside the amount awarded under Claim Nos.2, 3, 8, 12 and 16. The claimant, therefore, contending to be aggrieved preferred the Revision Petitions before the High Court. It is in the said proceedings the High Court has rejected the remaining claim except Claim No.1 as indicated above. It is in that circumstance the claimant is before this Court in this appeal. 6. Shri Nakul Dewan, learned senior advocate appearing for the claimant would contend that the First Appellate Court and the High Court were not justified in their conclusion to reject the Award passed by the learned Arbitrator. It is contended that the basis on which the Claim No.2 would arise for consideration will be the same basis for the Award of the amount under Claim Nos. 3 and 12. Even insofar as the Claim No.8 the additional amount will have to be calculated on that basis for the extra items used. In that background, it is contended that under Note 6 to the schedule of work which forms a part of the contract, it provides that extra or other items of work shall be paid at the rate worked out on the basis of relevant Punjab Common Schedule of Rates Basis Plus Sanctioned Premium at the time of tenderi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough rate items for construction, in the tender form (Annexure P2) wherein Note 6 specifies that the Punjab Common Schedule of Rates would be applicable. It is contended that as per the communication dated 05.01.1987 addressed by the Executive Engineer to the claimant, it indicates that the percentage above the departmental rates has been approved at 35.02%. In that light it is contended that the calculation towards the claim in any event could not have exceeded the same. In that view it is contended that the learned Arbitrator had not considered these aspects nor does the Award indicate his mind. On the other hand, the learned First Appellate Court and the High Court having taken note of these aspects has arrived at the conclusion which does not call for interference. With regard to the Claim No.8 relating to extra payment for DALDAL (SWAMPY Area) the First Appellate Court and the High Court has taken into consideration that the claim had not been made within the time provided and has accordingly rejected the claim. In that view it is contended that the order passed by the High Court does not call for interference. 8. In the light of the above, a perusal of the appeal papers wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of D.C.M Ltd. vs. Municipal Corporation of Delhi & Anr. (1997) 7 SCC 123 is relied upon to contend that even in case of a nonspeaking Award if the Arbitrator has proceeded without overlooking any term of the contract, the same cannot be considered as an error apparent on the face of the Award. In an attempt to persuade us the learned senior counsel has with leave referred to the decision of the High Court of Delhi in the case of M/s Naraindas R. Israni vs. Union of India DRJ (1993) 25 to point out that in respect of an agreement containing a similar clause the learned Judge had held that the learned Arbitrator is not required to give detailed reasons like a Civil Court but what is expected of the Arbitrator is that he must give out the trend of his thought process and it is not necessary for the Arbitrator to give any arithmetic computation. 11. The learned advocate for the opposite party would however point out from the very decision in the case of Indian Oil Corporation Ltd. (supra) relied upon by the learned senior counsel for the claimant that this Court in the said decision has also held that where an authority makes an order in exercise of a quasijudicial functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for the conclusion reached on Claim No.2 which was also relevant for considering the Claim Nos.3 and 12 as well. If that be the position the only explanation that is sought to be put forth by the learned senior advocate for the claimant that the basis for such conclusion is the difference of the value between the estimated amount at Rs. 31 lakhs and the contract amount at Rs. 59,86,732/to work out the premium would not be justified. The quantum of the contract amount as against the estimated cost by itself could not have formed the basis to conclude the claim as made by the claimant towards premium of extra items, extra items for supply and laying of selfdraining materials and towards rehandling of earth work. In that regard the contention to the contrary put forth by the opposite party was that the tender form Page 15 of 26 provided for that aspect under Note 6, which reads as hereunder: "Extra other items shall be paid for each such items of work at thorough rate worked out on the basis of relevant Punjab Common Schedule of Rates basis plus sanctioned premium (at the time of tendering), plus or minus percentage above or below worked out by the department by reference to dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Judge ought to have arrived at the conclusion of the admissible claim and in that regard a conclusion ought to have been reached instead of rejecting the claim outright since the course to remand the matter to the Arbitrator was not adopted. 16. In that background since we have referred to the communication dated 05.01.1987 which is produced at Annexure R3 with the additional documents and also on taking note of the contention urged by the opposite party regarding the premium rates to be worked out at 35.02%, we are of the opinion that instead of rejecting the entire claim as made by the claimants, premium for the extra items is to be determined at 35.02% and the claim based on the same is required to be awarded. To that extent, the calculation is to be made by the opposite party and the amount be paid to the claimant. The said calculation with the premium at 35.02% shall be made in respect of the extra items indicated under Claim Nos.2, 3 and 12. 17. Insofar as the Claim No.8, it relates to the work carried out on DALDAL land wherein the soil was marshy and extra construction material was required to complete the work. The learned Arbitrator through the impugned Award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional work has actually been done, the claim is put forth along with details so that baseless claim is not made at a distant point in time when it will not be possible to determine. Though the Clause also indicates that if such claim is not made, it would amount to waiver, in a circumstance where the claim is ultimately put forth in the forum where an adjudication is made and based on the material if the adjudicating authority is satisfied that the actual work had been done and the contractor being entitled to the extra amount spent by him to carry out the work in an appropriate manner, it would not be just and proper to deny such claim only on the ground that it had not been indicated strictly in the manner as provided in the contract specially keeping in view the nature of work undertaken. To that limited extent a perusal of the Award passed by the learned Arbitrator would indicate that the learned Arbitrator had taken into consideration the letter dated 14.11.1986 wherein the identification of soil which was agreed to. The letter dated 09.03.1987 submitting the test results identifying the strata encountered as DALDAL is referred therein. The work having been completed duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Claim Nos. 2, 3, 8 and 12 by working out the difference of cost on the tender premium at 35.02%. On arriving at the quantum of the Page 24 of 26 amount, the same shall be payable with interest at 12% per annum in the manner as ordered by the First Appellate Court. The claim No.1 ordered by the High Court is sustained. The said exercise for calculating and paying the amount to the claimants on claim Nos.1, 2, 3, 8 and 12 shall be completed by the opposite party within the period of six weeks from this date. In the event of there being delay in payment beyond the said period, the same shall carry interest at the rate of 18% per annum till the date of payment. 21. In the result we pass the following: ORDER (i) The order dated 06.11.2007 of First Appellate Court and the order dated 08.04.2011 by the High Court in Rev. No.2958/2008 are modified. (ii) It is ordered that in addition to the Claim No.1 allowed by the High Court, the claimant is also entitled to the amount under Claim Nos.2, 3, 8 and 12, however, to be calculated at the premium of 35.02%. The same shall be calculated with interest at 12% per annum and paid in six weeks from this date failing which the same will carry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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