Bombay High Court
Sau. Chandrakala W/O Maroti Dhale ... vs Shri Maroti Raghobaji Dhale And ... on 10 March, 2023
Bench: Avinash G. Gharote
AA 11.19. 1/4 4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Arbitration Appeal No.11/2019
(Commander Works Engineers, AFI, Nagpur V M/s Ajay rash Construction Co. and
another)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Mrs. Anjali Joshi, Adv for appellant.
Mr. Abhijit Khare, Adv for respondents.
CORAM : AVINASH G GHAROTE, J.
DATE : 10-03-2023
On 10-02-2023, after hearing the learned
counsels, the following position was recorded :-
"Heard.
2. The only ground argued is that
condition No.11(C) of the contract, imposes
restrictions upon the contractor from claiming
compensation, as as result of the extension granted
under conditions 11 (A) and (B) above. Clause (A)
of condition 11 (page 45) permits extension being
granted to the contractor by reason of delay on part
of the contractor or by force majeure as indicated in
condition 11 Clause (A)(i) to (vii) and Clause (B)
contemplates extension being granted on account of
non availability of Government stores shown in
Schedule 'B', or non-availability or breakdown of
Government Tools and Plants listed in Schedule 'C'
(page 46).
3. The learned counsel for the appellant
submits, that no plea has been raised in respect of
condition 11(B) (b). The learned Arbitrator in the
AA 11.19. 2/4 4
award in para 12 has categorically pointed out, that
the work was delayed on account of lack of supply
of Bitumen by the appellant. It is equally a position
on record as spelt out from the said para itself, that
no extension was granted to the respondents till the
time the work was completed on 14.08.1997. A
post facto extension is claimed to have been granted
upto 30.04.1995 only by the communication dated
15.01.1998. When asked about the material to
indicate the existence of parameters as
contemplated by condition 11 ©, the learned
counsel for the appellant, seeks time to make
inspection and point out the relevant documents,
considering which, list the matter on 24.02.2023."
2. Today, it is contended by Mrs. Joshi, learned
Counsel for the appellant, that since Clause 11 (A) and
Clause (B) (i) were worked out in view of clause 11 (C),
the compensation was not payable.
3. A perusal of the award dated 31-12-2003
(pg 20) indicates, that though the claimant had
commenced the work at site on 02-05-1994 and had
initially completed the work of water bound macadam
and filling of pot holes within a period of one month,
the work of premix carpet was commenced on
06-06-94. The total requirement of bitumen was
approximately 60 MT. The claimant raised the demand
for issuance of Schedule-B material, as a result of which,
the respondents had issued 30.08 MT of bitumen to the
claimant between 30-5-94 to 8-6-94 and the work of
premix carpet was done from 06-06-94 to 12-06-94.
AA 11.19. 3/4 4
After the monsoon, the work was restarted on 29-03-94
and continued upto 17-11-94. Upon the consumption
of the major part of the bitumen as issued to the
claimant, a demand was made for balance quantity of
30 MT of bitumen, out of which only 60MT bitumen
was made available from January-1995 to July-1995 as
per the store ledger.
4. The award further records that there were
various letters from the claimant from 17-09-94,
demanding the balance quantity of bitumen, which were
not replied. The award records that the balance 30 MT
bitumen was given to the claimant only in May-1996.
It is not the case as spelt out by the appellant that there
was non availability of bitumen which was Schedule-B
quantity in the stores for which clause 11 (B) (a) of the
Contract would clearly not be attracted. Insofar as
clause 11 (A) is concerned, it is an admitted position,
that though extensions were sought, they were never
granted from 02-05-94 i.e the commencement of the
work till 14-8-97, the date on which the work stood
completed which would make it apparent that the work
was carried out by the claimant, and so also permitted
to be completed by the respondents, without granting
any extension at all. The grant of extension by the
communication dated 15-1-98, there would not enure to
the appellant to claim applicability of clause 11 (A) of
the Contract.
AA 11.19. 4/4 4
5. Considering the above position, no case is
made out for interference under any of the clauses of
Section 34 (2) of the Arbitration and Conciliation Act,
1996 (for short, 'A and C Act, 1996'), in view of which, I
do not see any reason to interfere in the award passed
by the learned Arbitrator as well as the judgment of the
learned Principal District Judge in the application u/s 34
of and A and C Act, 1996. The appeal is therefore
dismissed. No costs.
JUDGE
Deshmukh
