Union Of India vs 2 Shri A. P. Joshi
2012 Latest Caselaw 148 Bom

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    dgm




                                                                                 
              IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                         
                   ORDINARY ORIGINAL CIVIL JURISDICTION

                   ARBITRATION PETITION NO. 366  OF 2009




                                                        
    Union of India,
    Represented by the Executive Engineer,




                                            
    Mumbai Central Division-VI, Central
    Public Works Department, Mumbai
                              ig                         ....   Petitioner
           vs
    1  A. K. Construction Co.
        (A sole proprietary concern)
                            
        having its office situated at
        Anjanaya, Opp.Hiranandani
        School, Orchid Avenue,Powai,
        Mumbai 400 076.
        


    2  Shri A. P. Joshi, Arbitrator                      ....   Respondents
     



    Mr. G. Hariharan i/by Mr. Pankaj Kapoor for the petitioner.
    Mr. Ajit S. Karwande for respondent No.1. 





                                      CORAM:   ANOOP V. MOHTA, J.

DATE : October 09, 2012

ORAL JUDGMENT.:

The Petitioner/Union of India has challenged the Award under

Section 34 of the Arbitration and Conciliation Act, 1996 (for short,

Arbitration Act) basically Claim Nos. 4, 69 only. There is no specific

challenge to the other claims. The Respondent/contractor has not

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challenged the rest of the Award.

2 The basic submissions of the learned counsel for the Petitioner

revolve around Clause 12 of the Central Conditions of Contract for

Central P.W.D. Works, 2008 which permits in case of deviation of extra

items and substituted items, pricing part to be adjudicated by the

concerned Engineer. This itself means, there is no bar that in case of

deviation and/or substitution, the contractor, subject to the decision

by the concerned Authority is entitled to claim for extra items.

Admittedly, there was deviation in the work referring to design also.

The decision so given by the Engineer, so far as the work as liable and

the deviated and/or directed to be completed. There is no dispute

that the contractor completed the work as directed from time to time.

The time was extended for about 4 years. There was no restricted

terms and/or conditions for such extension.

3 The learned Arbitrator, therefore, considering the nature of

various civil and construction work and as there arose dispute

between the parties, granted the claims which are under challenge.

    4      So   far   as   Claim   No.4   is   concerned,   which   are   towards   the 




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balance of payment that substituted items and for extra items of work,

there is no serious dispute with regard to the material placed on

record in support of the claim. The learned Arbitrator, therefore, in

view of above by giving sufficient reason and also by recording the

fact that the work was done as per the direction, awarded the claim at

the rate of 980 per square meter as for similarly placed contractor, the

work in adjacent building, during the same period, the Department

accepted and made the payment accordingly.

5 So far as the claim No.6 is concerned, based upon the statement

of claim and the material placed on record and after considering the

rival contention of the Petitioner again by noting that there was no

denial to the extra work done by the contractor, granted the claim as

prayed. The reason so given in this regard also is well within the

frame work of law and the record and needs no interference.

6 So far as claim No.9 is concerned, the claim was made by the

Respondent/contractor for more than Rs. 38 lacs with losses suffered

into various defaults including prolongation of Respondent's overhead

tools and plants and direct labour. The learned Arbitrator, however,

in view of the admitted position on record that the contract was

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extended without any restricted terms and conditions awarded only

Rs.3,36,029/- towards prolonging of overhead. The reason so given

in view of the admitted position and even considering the provisions

of the law and referring to the judgments of Bombay High Court as

well as Supreme Court cannot be stated to be perverse, contrary to the

record.

The Arbitrator, though interest was claimed at the rate of 21%

per annum, awarded only 8% per annum on the with effect from

20.11.2006 which is the date of demand for the substituted and extra

items of the work including the prolongation of overheads. I see there

is no case made out in this background to interfere with the impugned

award.

8 Resultantly, as the Award is well within the frame work of law

and there is no perversity, no case is made out to interfere with the

impugned Award. The Petition is accordingly dismissed. There shall

be no order as to costs.

(ANOOP V. MOHTA, J.)