Sadhu Singh And Co. vs National Projects Construction ...
2006 Latest Caselaw 2286 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Disputes and differences between the petitioner, M/s. Sadhu Singh & Co. (hereinafter referred to as 'the contractor') and National Projects Construction Corporation Ltd. (hereinafter referred to as 'NPCC') were referred for decision to the sole arbitration of Justice H.R. Khanna (retd.), a former judge of the Supreme Court of India. Said arbitrator having resigned, Shri K.D. Thite was appointed as the sole arbitrator to fill up the vacancy. He published an award on 30.10.1996. The award is a speaking award.

2. A petition was filed in this Court by the contractor invoking Sections 14 and 17 of the Arbitration Act, 1940 praying that the arbitrator be directed to file the award in this Court and thereafter proceedings be initiated to make the award a rule of the court. Said petition was registered S. No. 27-A/1997.

3. On being directed to do so, learned arbitrator filed the award in this Court. Notice of filing of the award was issued and served upon the parties. Vide IA No. 2654/1997, objections have been filed to the award by NPCC. Contractor has accepted the findings against him. It has not filed any objections.

4. The disputes between the parties relate to a contract awarded by NPCC to the contractor vide letter of intent dated 27.11.1984 as amended by a second letter of intent dated 28.11.1984. A formal agreement was executed on 18.08.1986.

5. At the outset it may be noted that vide second letter of intent dated 28.11.1984, pertaining to construction of random rubble masonry with hard stone in the coffer wall, additional work was added in addition to what was the subject matter of the letter of intent dated 27.11.1984.

6. A formal agreement was executed between the parties on 18th August, 1986 recording that NPCC had accepted the offer of the contractor to execute the works as specified in the documents under caption Document No. 1, Document No. 2 and Document No. 3 of the agreement, in respect whereof letter of intent dated 27.11.1984 amended by the letter of intent dated 28th November, 1984 was issued by NPCC to the contractor.

7. NPCC was executing the works on behalf of NHPC to commission a hydroelectricity power station as also a dam on river Beas in the State of Himachal Pradesh. The project was called Chamera Hydroelectricity Project.

8. Considering the magnitude of the work, NHPC had sub-awarded different items of works to different parries. The contractor bagged the contract for executing works relating to construction of diversion tunnel.

9. Before noting the relevant and necessary facts pertaining to the disputes on merits, five preliminary objections raised by NPCC need to be noted and decided for the reason, if three out of five preliminary objections or any one of said three succeeds, that would be the demise of the award.

10. The first preliminary objection falls beyond the award. The second and third were a subject matter of consideration before the learned arbitrator. Thus, for the second to the fifth objections, I would be referring to the award.

11. The first preliminary objection which had been raised is that the present petition filed under Section 14 read with Section 17 of the Arbitration Act, 1940 is not maintainable in this Court. Reasons to sustain the said preliminary objections are that earlier on, contractor had approached the High Court of Himachal Pradesh at Shimla by filing a petition under Section 8 read with Section 20 of the Arbitration Act, 1940 praying that NHPC be directed to file the arbitration agreement in court and an arbitrator be appointed in terms of the said arbitration agreement. That since the appointing authority appointed Justice H.R. Khanna (retd.) as the sole arbitrator, vide order dated 19.10.1989, the High Court of Himachal Pradesh dismissed the said petition filed by the contractor as having become infructuous. Relying upon the decisions reported as -Union of India v. Surjeet Singh Atwal and 1953 SCR 878-Kumbha Mawji v. Union of India as also Section 31(4) of the Arbitration Act, 1940, it is urged that the court which was moved at the prior point of time and had taken cognizance of a claim/petition under Arbitration Act, 1940 would continue to be the court which would have exclusive jurisdiction and authority to deal with subsequent issues relating to same arbitration proceedings.

12. The objection has been urged at the hearing for the first time. It does not constitute a part of the pleadings in IA No. 2654/1997.

13. Had NPCC raised this preliminary issue, this Court may have, in 1997 itself remitted the proceedings by returning the petition for re-filing in the High Court of Himachal Pradesh. But, in the fag end of the year 2006, it would be too late in the day to adopt the aforesaid course.

14. Suffice would it be to note that if this Court lacks inherent jurisdiction, parties by consent or by act of omission cannot clothe this Court with the necessary jurisdiction. But, where the plea of jurisdiction is not relating to the inherent lack of jurisdiction, parties could, by consent, confer jurisdiction, or waive objection to lack of jurisdiction.

15. Works were to be executed in the State of Himachal Pradesh but contract between the parties was executed at New Delhi. Thus, courts in Himachal Pradesh as also at Delhi would have jurisdiction to take cognizance of proceedings under the Arbitration Act, 1940.

16. It being not a case of lack of inherent jurisdiction of this Court, I overrule the preliminary objection raised at the hearing by recording that by not raising the said objection in writing while filing the objections to the award, NPCC is prohibited from urging said plea. Besides, High Court of Himachal Pradesh did not appoint the arbitrator. Petition filed by the contractor in said court was dismissed as infructuous as the arbitrator stood appointed.

17. As noted above, the second preliminary issue was raised before the learned arbitrator and, therefore, needs to be decided with reference to the award.

18. The plea raised was that the contractor could not maintain any claim under the contract for the reason it was not a registered partnership firm and secondly that M/s. Khular Construction Company Ltd. was not its partner. As an adjunct to the second limb it was urged that since arbitration clause was invoked and reference was sought under the authority of S. Bhajan Singh, stating himself to be the Managing Director of M/s. Khular Construction Company Ltd., the very reference was null and void inasmuch as S. Bhajan Singh had no authority to invoke the arbitration clause.

19. Learned arbitrator has duly noted and has dealt with this issue.

20. NPCC relied upon a deed of partnership dated 01.01.1984 which recorded that the petitioner firm had 11 partners. Contractor relied upon another partnership deed dated 19.04.1985 amending the earlier deed of partnership dated 01.01.1984 evidencing introduction of M/s. Khular Construction Company Ltd. as the 12th partner. Learned arbitrator has noted that introduction of M/s. Khular Construction Company Ltd. as the 12th partner of the contractor was known to NPCC evidenced by two letters dated 30.10.1985 and 13.03.1986.

21. I note that the said letters are at Page No. 122 of Volume xviii of the record of arbitration and Page No. 124 of Volume xviii of the record of arbitration.

22. Letter dated 30.10.1985 has been addressed by NPCC to the contractor and refers to the deed of partnership dated 19.04.1985. The letter seeks a clarification in the context of the registration certificate obtained by the firm showing 8 partners.

23. Letter dated 13.03.1986 has been addressed by the contractor to NPCC notifying it that the Registrar of Firms has issued the latest certificate of registration of the firm as also its partners. The said letter clearly records that M/s. Khular Construction Company Ltd. has been included as the 12th partner of the firm and said fact has been duly noted by the Registrar of Firms.

24. Learned arbitrator has further noted a deed of retirement dated 01.01.1988 (pages 129-130 of Volume xviii of the record of arbitration). The said deed of retirement shows that M/s. Sadhu Singh & Co. was dissolved w.e.f. 01.01.1988 and M/s. Khular Construction Company Ltd. took over the rights and liabilities of M/s. Sadhu Singh & Co.

25. Noting the aforesaid letters and documents, learned arbitrator has held that when contract was entered into, M/s. Khular Construction Company Ltd. was a partner of the contractor and that the contractor was a duly registered partnership firm having 12 partners as registered partners. Accordingly, he has held that the claim was clearly maintainable and that continuation of the claim by M/s. Khular Construction Company Ltd. was justified in view of the deed of retirement dated 01.01.1988. Regarding authority of S. Bhajan Singh to act as the human face for the contractor, suffice would it be to note that S. Bhajan Singh was the Managing Director of M/s. Khular Construction Company Ltd.

26. The reiteration of the said objection which was raised before the arbitrator, is nothing but a waste of precious judicial time.

27. I note from the objections filed, and as what was urged by learned senior counsel for NPCC, no mention whatsoever has been made in the objections to the deeds of constitution of the plaintiff firm, factum of registration of the firm with the Registrar of Firms, letters exchanged between the parties on 30.10.1985 and 13.03.1986 whereby induction of M/s. Khular Construction Company Ltd. as 12th partner was deliberated between the parties before contract was formally executed.

28. I find no merit in the said objection. The same is repelled.

29. The third preliminary objection raised, being the second preliminary objection raised before the arbitrator, was that the claims raised before the arbitrator were beyond reference and thus could not be adjudicated upon. It was urged on behalf of NPCC that vide its letter dated 23.01.1989 while invoking the arbitration clause contractor claimed only Rs. 5,05,29,417.78. Said claims were referred to the arbitrator. However, before the arbitrator, the claims were enhanced to Rs. 7,08,07,516.81. Thus, counsel for NPCC contended that claims filed were beyond the claims submitted for reference to arbitration vide letter dated 23.01.1989 and hence were outside the scope of reference.

30. While dealing with the said objection, learned arbitrator has referred to the letter dated 5th/10th April, 1989 (page 1, Vol. I), wherein while appointing the arbitrator, the Chairman and Managing Director of NPCC has neither referred any particular sum of claim, nor referred to claimant's letter dated 23.01.1989.

31. Thus, learned arbitrator has held that no limitation was placed by the appointing authority on the value or the sum forming subject matter of the claims.

32. A perusal of the award shows that learned arbitrator has dealt with the reference made to him qua what was the reference in the context of the subject matter of the claims and not the value.

33. I see no reason to disagree with the view taken by the learned arbitrator. It may be noted that the learned arbitrator has rejected Claim Nos. 2, 3 and 4 of Section I and Claim No. 2 of Section V on the ground that these claims were not raised in the letter dated 23.01.1989.

34. It would not be out of place to mention and record that the sum awarded by the learned arbitrator is much less than Rs. 5,05,29,417.78 and even per claim is less than the claim raised by the contractor in the letter dated 23.01.1989.

35. Thus, there is no merit in the respondent's objection that the arbitrator has acted beyond the scope of reference.

36. The fourth preliminary objection raised is that the award is vitiated on account of being based on a disputed concession/admission of NPCC.

37. The disputed concession/admission is the statement of reconciliation dated 14.01.1992 (pages 117-127, Vol. I) and 18.02.1992 (pages 128-131, Vol. I).

38. Record of arbitration shows that during hearings before Justice H.R. Khanna (retd.), directions were issued to the parties to file reconciled statements pertaining to the extent of work done. Pursuant thereto NPCC filed a statement dated 14.01.1992, duly signed by Shri U. Selvakumar and Shri R.C. Jain, employees of NPCC who were appearing along with the counsel at the hearings before the learned arbitrator, Justice H.R. Khanna (retd.). The statement dated 18.02.1992 is signed by Shri A.R. Dharadhar and Shri U. Selvakumar.

39. When arbitrator got changed, NPCC filed an application dated 29.03.1996 stating that the statement dated 14.01.1992 was not signed by Shri R.C. Jain. NPCC also filed an application dated 06.07.1996 stating that the statement dated 18.02.1992 (wrongly mentioned in award as 09.031992) is not correct as same was not based on record of NPCC.

40. The learned arbitrator has rejected the above two applications filed by NPCC and has while making the award relied upon statements dated 14.01.1992 and 18.02.1992.

41. In so holding, the learned arbitrator has referred to order sheets from 16.02.1991 to 01.05.1992 and amended reply filed by NPCC on 05.06.1993 and there from has drawn an inference that statements dated 14.01.1992 and 18.02.1992 were filed by the officers of NPCC based on record. The learned arbitrator has specifically noted that Shri R.C. Jain was present at a number of hearings after 14.01.1992 but never disputed his signatures on the statement dated 14.01.1992. Learned arbitrator has noted that for the first time his signatures were denied when application dated 29.03.1996 was filed. Learned arbitrator has also noted the affidavit of Shri U. Selvakumar wherein he stated as under:

After reconciliation of quantities and recoveries, two statements have been filed before arbitrator which are correct.

42. The learned arbitrator has also noted that NPCC refused to produce before him the final bill submitted by NPCC to NHPC when requested by the contractor as noted in the order sheet for the hearings held on 24.10.1989 and 10.02.1990.

43. Shri S.K. Taneja, learned senior counsel for NPCC contended that the learned arbitrator failed to appreciate that NPCC produced all the concerned officials who disputed the correctness of statements dated 14.01.1992 and 18.02.1992 and, therefore, misconducted the entire proceedings by relying upon the affidavit filed by Shri U. Selvakumar, whose version was disputed by other officials.

44. There is no merit in the argument advanced by the learned senior counsel for NPCC. As noted above, learned arbitrator has noted continued presence of Shri R.C. Jain, a signatory to the statement of reconciliation dated 14.01.1992. No reasons have been explained even to me as to why Shri R.C. Jain did not withdraw his report contained in the statement of reconciliation dated 14.01.1992. The learned arbitrator was justified in drawing an adverse inference against NPCC for not producing the final bill submitted by NPCC to NHPC. As noted above, the works were to be executed by NPCC for NHPC. Part-work was awarded to the contractor. If works executed by the contractor were reflected in the final bill submitted by NPCC to NHPC it would have constituted good evidence in favor of the contractor and against NPCC. It is settled law that where a party in possession of best evidence refuses to produce the same, an inference can be drawn that had the evidence been produced, it would have gone against the said party.

45. The last objection of NPCC is that by ignoring the terms of the agreement dated 18.08.1986 executed between NPCC and contractor the arbitrator has acted with material irregularity amounting to illegality and has travelled beyond his jurisdiction to hold that the terms of agreement between NHPC and NPCC shall be applicable to the contract between NPCC and the contractor.

46. Shri S.K. Taneja, learned senior counsel for NPCC contended that the learned arbitrator cannot novate the contract between the parties.

47. A perusal of the award shows that the learned arbitrator has relied upon contractor's letter dated 10.04.1985 (page 38, Vol. IV) and agreement dated 18.08.1986 (page 38, Vol. IV) for arriving at the conclusion that the terms of agreement between NHPC and NPCC were applicable to the agreement between NPCC and the contractor.

48. The relevant part of the letter dated 10.04.1985 reads as under:

It was already agreed in the meeting at the time of the finalization of the contract that all the conditions of contract of NPCC with NHPC shall apply including its amendments. The agreement kindly be finalized on this basis immediately.

49. The relevant part of agreement dated 18.08.1986 executed between NPCC and contractor reads as under:

... This contract agreement consists of the following documents all of which are forming part of this contract as if herein set out verbatim or if not, attached as if hereto attached....

50. The letter dated 10.04.1985 is mentioned at Serial No. 7 under the heading Document No. 2 in the said agreement.

51. Thus, it is crystal clear that the letter dated 10.04.1985 forms part of the contract executed between NPCC and the contractor and that the terms of agreement between NHPC and NPCC were to be read as referable by incorporation to the contract between NPCC and the contractor.

52. It is trite that interpretation of letters and appreciation of evidence as also interpretation of a contract is within the exclusive domain of an arbitrator. It is not open for this Court to sit in appeal and re-appreciate the evidence or the conflicting views projected. As long as the view taken by the arbitrator is not perverse, it cannot be questioned.

53. It is time to deal with the objections raised to the award in terms of the monetary claim allowed by the learned arbitrator.

54. The claims of the contractor were divided into ten sections numbered as Section I to Section X.

55. The learned arbitrator has disallowed claims pertaining to Sections III, IV and VIII. The contractor has not filed any cross-objections or objections to the award rejecting said claims and, therefore, I need not note claims under said sections. Similarly, certain sub-claims under certain sections have been disallowed and no cross-objections or objections to the award pertaining thereto having been filed by the contractor, I need not note said sub-claims.

56. As regards NPCC, all and sundry objections have been raised to the claims allowed by the arbitrator in favor of the contractor. I shall deal with the objections claim-wise.

57. Section I of the claims related to claims arising out of non-availability of outlet portal area. Under this head, 4 sub-claims were raised. Total amount of the said 4 sub-claims is Rs. 37,91,881. Sub-claims (2) to (4) have been denied on the ground that the same were not included in the letter dated 23.01.1989 whereunder the contractor had sought reference of claims for arbitration. Only sub-claim (1) has been allowed and that too in sum of Rs. 1,17,485.

58. Basis of the claim by the contractor was that under the contract, it was the duty of NPCC to make available an access road to the downstream portal area where work awarded to the contractor had to commence. According to the contractor, the said road had to be made available before the date of commencement of work, i.e. on 31.10.1984.

59. The contractor relied upon Clause 12.3(b) of the Special Conditions of Contract.

60. Admittedly, the access road was provided only on 27.02.1986. Thus, for executing the works awarded to it, the contractor had to perform extra work and obviously incurred expenditure thereon.

61. Case of NPCC on the other hand was predicated on Clauses 12.3 and 39 of General Conditions of Contract and Clause 1.1 of Special Conditions of Contract. It was urged before the learned arbitrator by NPCC that it was the responsibility of the contractor to construct and maintain the said access road at contractor's own cost. It was further submitted by NPCC that as per Clause 16.1 of Special Conditions of Contract, if there was any delay in providing any facility or material by NPCC to the contractor, the contractor shall not be entitled to any claim or damage.

62. The sub-claim was for extra lead used by the claimant as a result of non-availability of downstream portal area due to access road not being available.

63. After considering the respective contentions and examining the records, learned arbitrator has concluded that NPCC's contention that the road to outlet portal area was to be constructed by the contractor is not correct and has held that providing the road was the obligation of NPCC. After considering the factual aspect, the learned arbitrator has held that contractor's claim is justified for extra lead for doing the work of last 25m of excavation and has awarded a sum of Rs. 1,17,485 on this account.

64. To understand the reasoning of the arbitrator, it is important to note the clauses relied upon by the parties.

65. But before that it may be noted that Clauses 12.3 and 39 of the General Conditions of Contract relied upon by NPCC is of no consequence as Special Conditions of Contract overrule the General Conditions of Contract.

66. Clause 12.3(b) of the Special Conditions of Contract reads as under:

(b) Scheduled events-

The following scheduled events relating to corporation's overall project schedule and work performed by others are proposed to be completed by the dates indicated against them and are provided for contractor's information. Contractor shall incorporate these dates into his overall construction schedule and shall utilize these dates to plan his work and coordination with other contractor's work being performed at site:

Completion of access roads down towards downstream portal October 31, 1984....

67. Clause 1.1 of the Special Conditions of Contract reads as under:

All access and haul roads required for the use of contractor shall be constructed and maintained by the contractor at his own cost throughout the contract period....

68. Perusal of the two clauses shows that Clause 1.1 relied upon by NPCC is general in nature while Clause 12.3(b) relied upon by the contractor emphatically provides that access roads to downstream shall be provided (by the corporation) by 31.10.1984. It may be noted that access road towards downstream portal was not to be laid by the contractor. Said work was assigned to another agency.

69. It is settled law that the special always overrides the general. Clause 12.3(b) would be a special clause vis-a-vis Clause 1.1 for the reason Clause 12.3(b) specifically deals with access road to the portal area and mandates that it shall be the responsibility of NPCC to provide the said road. Clause 1.1 is generally providing for maintenance of access roads required for the execution of the works by the contractor.

70. Clause 16.1 of the Special Conditions of Contract relied upon by NPCC had no applicability. The said clause reads as under:

16.1. Where any facility/material or anything is agreed to be provided by the corporation to the contractor and if it is not provided or if there is any delay in providing the same, the contractor shall not be entitled to any claim or damage from or against the corporation. The contractor may, however, ask for a suitable extension of time which may be granted by the Engineer-in-charge, at his sole discretion, as provided in Clause 39 of the General Conditions of the Contract.

71. The claim raised by the contractor was not on account of damages but for extra work done by the contractor due to non-availability of downstream portal area. The claim raised by the contractor was in nature of recompense. Extra work done has to be paid for by the owner. Claim for extra work is not a claim for damages. Damages are on account of loss suffered or are awarded to restore the parties to the original position.

72. I find no infirmity in decision of the learned arbitrator as mandate of Clause 12.3(b) of the Special Conditions of Contract is clear and provides that by 31.10.1984 access road to downstream portal area would be made available by NPCC. On quantification of the claim I find that the learned arbitrator has returned a finding of fact pertaining to extra work done by the contractor. Quantification of the sum awarded is in relation to the extent of extra work done.

73. Faced with the situation aforenoted, learned senior counsel for NPCC sought to urge a submission based upon Clause 3.1 of Scope of Work and 3.11.3 of Technical Specifications in support of the contention that learned arbitrator was wrong in awarding Rs. 1,17,485 for extra lead under Section I.

74. I am not inclined to even note the said submissions for the reason said clauses were not projected before the learned arbitrator evidenced by the fact that in the pleadings of NPCC before the learned arbitrator said case has not been pleaded or projected. NPCC cannot for the first time raise objections before me in the present proceedings. I have to deal with the objections in relation to the award and this requires me to restrict the scope of inquiry to what was pleaded and argued before the arbitrator.

75. Sub-claims 2, 3 and 4 raised by claimant under Section I were rejected by the arbitrator for the reason that these claims were not raised by the contractor in the letter dated 23.01.1989. Since the contractor has not filed any objections to the award pertaining to the rejection of the said sub-claims, I need note no further.

76. Claims under Section II were predicated on the allegations of the contractor that due to unplanned and uncoordinated work being got executed by NPCC, the contractor had to incur not only extra expenditure to execute the work awarded to the contractor but even suffered losses.

77. It may be noted that of the various works for which NPCC had obtained a contract from NHPC, only part-work was sub-contracted with the contractor and other agencies were executing the remaining works. Thus, it is obvious that it was the duty of NPCC to coordinate the works executed by different sub-contractors.

78. Under this head, 3 claims were raised and an amount of Rs. 21,77,320 was claimed by the contractor.

79. Claim No. 1 raised was for alleged losses suffered by the contractor due to accidents caused by careless, improper and unplanned working by NPCC.

80. Claim No. 2 raised was for alleged losses suffered by the contractor due to forced stopping of outlet hill slope portal works.

81. Claim No. 3 was on account of alleged losses suffered by the contractor due to the access road to outlet portal area being washed away during monsoon. Contractor alleged that NPCC did not maintain the road, in that, proper embankments were not put into place.

82. Claim No. 1 was rejected. Contractor has not challenged the award. That is the end of the matter.

83. Pertaining to Claim No. 2 the contractor's contention before the learned arbitrator was that NPCC instructed the contractor to stop outlet portal hill slope excavation from 01.04.1986 due to which the contractor incurred heavy losses due to idle labour and machinery stationed at site. Additionally, the claim was on account of the contractor's allegation that the day light drift which was opened on downstream portal road had to be protected by laying hume pipes and stone walls to save it from being blocked with muck coming down from the over side road. This necessitated extra expenditure. Contractor claimed Rs. 3,41,497 on this account.

84. NPCC refuted the claim and relied upon Clause 35.1 of the General Conditions of Contract which empowered the Engineer-in-charge to suspend the work for safety of the works or any part thereof and stipulated that in such case the contractor shall not be entitled to any extra costs, if any, incurred by it during the period of suspension of the works.

85. The learned arbitrator has awarded Rs. 2,13,729 to the contractor. In awarding said sum learned arbitrator has relied upon NPCC's letter dated 27.01.1986 (CA-4, Vol. XIX) addressed to NHPC in support of contractor's contention that work was forcibly stopped and that money had to be spent by the contractor.

86. NPCC's letter dated 27.01.1986 reads as under:

The Asstt. Manager, NHPC, CHEP, Banikhet.

Dear Sir,

This is in continuation to our previous letter on the above cited subject. We have been forced to stop the work of excavation of loose rock from the downstream portal of diversion tunnel with the result that 30 Drillers, 1 Foreman, 1 Fitter, 1 S.O. (M) and 1 Engineer of M/s. Sadhu Singh & Co. have become idle since 14.01.1986. In addition to this 33 skilled khalasis, 105 unskilled labour and supervisory staff including the machinery have also been rendered idle due to no fault of theirs which needs to be compensated. The day light drifts which was open on downstream portal road has been protected by laying hume pipes and stone walls to save it from blocking with the muck coming down from the over side road. They had to protect 6" dia. airpipe which was feeding the downstream portal. These are extra jobs which were not required to be carried out had the work been allowed to continue and shall have to be compensated. This compensation shall be apart from the extension in time and the losses which have been suffered by them due to delayed handing over of the downstream portal area resulting in subsequent stopping of work and causing heavy loss.

You are, therefore, very kindly requested to expedite the construction of above road so that the work of outlet portal may be started immediately without any further loss of time.

Thanking You, Yours faithfully, Sd/-

(D.R. Alwadhi) Project Manager

87. In light of NPCC's letter dated 27.01.1986 it is apparent that NPCC admitted the wasteful expenditure incurred by the contractor due to idle manpower and machinery as also extra expenditure incurred due to protective measures taken by the contractor. There is thus no infirmity in the decision of the arbitrator in relying upon letter dated 27.01.1986 and awarding Rs. 2,13,729 against the said claim.

88. Recompense to a party for extra expenditure incurred while executing works is strictly speaking not damages as conventionally understood. Damages are awarded to make good a loss suffered. Recompensing a party the extra expenditure incurred would not be akin to paying damages. Further, as noted from the content of the claim it had two distinct limbs. One being wages paid to the manpower stationed at site and the other being expenditure incurred to protect the area.

89. Vague and misleading objections have been raised by NPCC pertaining to this claim. Shri S.K. Taneja, learned senior counsel for NPCC contended that learned arbitrator acted illegally in relying upon letter dated 27.01.1986 written by NPCC to NHPC as the basis for allowing the said claim and erred in not taking into consideration that the claim of the NPCC was rejected by the NHPC vide its letter dated 06.10.1990.

90. The letter dated 06.10.1990 relied upon by the learned Counsel for NPCC was never placed by NPCC before the learned arbitrator and does not form part of the record of arbitration. Thus, no submissions can be made to question the award based upon said letter dated 06.10.1990.

91. Claim No. 3 raised under this section was for alleged losses suffered by the contractor due to washing away of access road to the outlet portal area. Under this claim, a sum of Rs. 4,66,434 was claimed by the contractor.

92. The access road to outlet portal area was admittedly essential to carry out the work of the diversion tunnel for the reason machinery and material as also the labour and the staff engaged to execute the works had to access the site through the road in question. Admittedly, the said access road was washed away by the monsoon floods.

93. Contractor contended before the arbitrator that access roads provided by the respondent as per Clause 12.3(b) of the Special Conditions of Contract was washed away by monsoon floods in July 1986. This seriously hampered the progress of work of diversion tunnel as machinery and labour could not be taken to site and materials had to be transported by head load. Thus, it incurred heavy losses on this account. The claim of the contractor was divided into two parts. Rs. 3,78,234 was claimed on account of loss due to under deployment of labour from 07.07.1986 to 30.08.1986. Rs. 88,200 was claimed on account of cost of carriage of construction materials by head load.

94. NPCC denied the claim and relied upon Clause 34.2 of the General Conditions of Contract which provides that neither party to the contract shall be liable to other in respect of any loss or damage which may occur or arise due to force majeure conditions.

95. The learned arbitrator has denied the first limb of the claim but has awarded Rs. 66,000 under the second limb. In so awarding, learned arbitrator has referred to minutes of a meeting dated 04.08.1986 between NHPC, NPCC and the contractor which confirmed that the access roads to outlet portal had been cut-off due to heavy floods.

96. Since the contractor has not filed any objections to the award I need not deal with the reasoning of the learned arbitrator rejecting the first limb of the said claim. 1 need only note the reasoning of the learned arbitrator while awarding Rs. 66,000 under the second limb of the claim.

97. The reasoning of the learned arbitrator in awarding Rs. 66,000 under the second limb of the claim is that due to urgency to complete the work, the contractor was required to carry on the work in the absence of the access road by transporting materials to the site manually by head load. This entailed extra expenditure. The extra expenditure estimated by the learned arbitrator is Rs. 66,000.

98. The reasoning given by the arbitrator while awarding Rs. 66,000 under this claim is sound and correct. The force majeure clause, i.e. Clause 34.2 has no applicability as amount awarded by the arbitrator is not on account of loss or damage suffered by the contractor but due to the fact that since material was manually transported by the contractor to complete the work in time, money spent for said transportation was to be recompensed to the contractor.

99. Shri S.K. Taneja, learned senior counsel for NPCC sought to raise objections to this part of the award by relying upon Clauses 1.1 and 1.2 of the Special Conditions of Contract.

100. 1 am not inclined to upset the award on said clauses for the reason these clauses were not pressed nor relied upon before the learned arbitrator evidenced by the fact that in the pleadings of NPCC before the learned arbitrator, in respect of claim under consideration, these clauses were not relied upon.

101. It was lastly urged by Shri S.K. Taneja, learned senior counsel for NPCC that learned arbitrator failed to consider that when NPCC made a similar claim to NHPC, the said claim was rejected by the NHPC vide its letter dated 06.10.1990.

102. The said contention has to be rejected for the reason the letter dated 06.10.1990 relied upon by the learned senior counsel is not a part of the record of the arbitrator. The said letter has nowhere referred to by NPCC in its pleadings before the learned arbitrator. Suffice would it be to record that no objection can be urged to challenge an award by relying upon a document not filed before the arbitrator.

103. Thus, there is no merit in the objections raised by NPCC to the sums awarded by the learned arbitrator under Section II.

104. Claims under Section III and Section IV raised by the contractor were rejected by the learned arbitrator. Since contractor has not filed any objections to the award, I need not note the award pertaining to Section III and Section IV.

105. Claims under Section V were laid before the arbitrator by the contractor alleging that during execution of the works, as against the normal method of tunnelling, pilot method of tunnelling for construction of access adit and excavation of diversion tunnel was directed to be followed and adopted by the contractor and this entailed extra expenditure. Under this head, 2 claims were raised and an amount of Rs. 31,88,129 was claimed by the contractor.

106. The controversy obviously relates to method of excavation/tunnelling employed by the contractor for construction of access adit and excavation of diversion tunnel.

107. The contention of the contractor before the learned arbitrator was that as per Clauses 3.9.1 and 3.9.2 of Technical Specifications, the construction of access adit was by adopting the methodology of excavation by full face method and excavation of diversion tunnel by top heading and benching. But, on instructions from NPCC, it was forced to use pilot method of tunnelling, first during construction of access adit and then for excavation of diversion tunnel. As the pilot method of tunnelling was more expensive than full face method, the contractor incurred extra expenditure. Recompense whereof was sought.

108. On the other hand, NPCC contended that there was nothing wrong in instructing the contractor to use pilot method of tunnelling for construction of access adit and excavation of diversion tunnel. NPCC submitted that the said decision for employing pilot method of tunnelling was taken by Engineer-in-charge and as per Clauses 3.0.11, 3.1.2, 3.1.3, 3.2.1 and 3.2.4 of Technical Specifications and the contractor was bound to carry out the excavation strictly as directed by the Engineer-in-charge whose decision in the matter is binding.

109. The learned arbitrator has referred to NPCC's letter dated 31.05.1985 (CA-9, Vol. XIX) addressed to NHPC. The learned arbitrator has noted that in the said letter NPCC wrote that "Anotherfactor which made us to suffer heavy loss is that most of excavation of adit had to be done by pilot method of tunnelling because cement/resin capsules for fixation of rock bolts were not available and installation of steel ribs was not allowed by the department".

110. Learned arbitrator has treated the said letter as admission of NPCC that extra sum was spent due to the changed methodology which had to be deployed for execution of the work.

111. A sum of Rs. 4,70,800 has been allowed to the contractor.

112. I find it a little surprising that NPCC raised a claim for extra under this head from NHPC but denies payment to its sub-contractor for the same work.

113. I may additionally note the language of Clauses 3.9.1 and 3.9.2 of the Technical Specifications. The same read as under:

Clause 3.9.1

The construction of access adit shall initially be excavated by full face, with perimeter holes initially spaced at 450 mm.

Clause 3.9.2

The diversion tunnel shall be excavated by the top heading and bench method. Contractor may propose an alternative method of excavation, which shall be subject to review by Engineer-in-charge.

114. Case of NPCC before the learned arbitrator was that initially it directed contractor to use full face method of excavation as per Clause 3.9.1 but thereafter due to poor quality of rocks, it directed contractor to use pilot method as per Clause 3.9.2.

115. The stand of NPCC cannot be accepted for the simple reason Clause 3.9.1 relates to construction of access adit and Clause 3.9.2 relates to excavation of diversion tunnel. Thus, the two clauses relate to two different activities. The latter cannot be read in conjunction with the former and vice versa.

116. Further, relevant extract of the letter dated 31.05.1985 (contents noted in para 109) makes it clear that NPCC directed contractor to employ pilot method not because of poor quality of rocks but because of cement/resin capsules for fixation of rock bolts were not available and installation of steel ribs was not allowed by NHPC. Further, Clause 3.9.2 mandated that diversion tunnel shall be excavated by the top heading and bench method. The latter part of the clause gave an option to the contractor to suggest an alternative mode. The said clause does not empower the Engineer-in-charge to direct deployment of an alternative mode. The power of review of the Engineer-in-charge flowing from the last sentence of the clause is to review, if at all, contractor suggests an alternative method for execution of the works.

117. As in the case of other objections, learned senior counsel Shri S.K. Taneja contended that learned arbitrator illegally made NPCC's letter dated 31.05.1985 as the basis for allowing the said claim without taking into consideration that the claim of NPCC under said head was rejected by NHPC vide their letter dated 06.10.1990.

118. As noted above, the letter dated 06.10.1990 relied upon by learned senior counsel does not form part of record of arbitration and was never relied upon before the learned arbitrator. Thus, the objection raised by NPCC is devoid of any merit.

119. Claim No. 2 under this section raised by the contractor has been rejected by the arbitrator for the reason that claim was not raised in the letter of 23.01.1989. Since contractor has not filed any objections to the award, I need not note the controversy under this head.

120. Claims under Section VI related to the contractor's allegations pertaining to non-availability of MEC area and forced abandoning of other areas and complexes. Under this head, 5 claims were raised and an amount of Rs. 20,04,548 was claimed by the contractor. The 5 claims under this section are as under

(i) Claim No. 1 related to alleged expenses incurred by contractor for shifting its labour sheds and other materials from MEC area.

(ii) Claim No. 2 related to alleged hire charges paid by the contractor for land at Bathri and building at Goli.

(iii) Claim No. 3 related to destruction of Bathri Nallah Foot Bridge which was constructed by contractor for movement of its labour in absence of access roads to MEC area. Under this claim, a sum of Rs. 17,500 was claimed by the contractor.

(iv) Claim No. 4 related to alleged extra expenditure incurred by the contractor on account of labour traveling longer distances in absence of access roads to MEC area. Under this claim, a sum of Rs. 1,60,000 was claimed by the contractor.

(v) Claim No. 5 related to developmental expenses incurred by contractor on land allotted to it for residential, office, workshop and other purposes.

121. Claims 1, 3 and 4 have been rejected by the learned arbitrator and since contractor has not filed any objections to the award, I need not deal with the issues arising and pertaining to said 3 claims. Since Claim Nos. 2 and 5 under this section have been partially allowed, I would be noting the foundation of the dispute pertaining to said claims and the rival versions of the parties.

122. Contractor's contention before the learned arbitrator was that access roads to MEC area were not provided by NPCC due to which contractor had to manually transport construction materials and thus incurred extra expenditure. Contractor further contended that it also undertook development of MEC area at its own cost and incurred expenditure when said area was taken over by NPCC, as new area had to be developed.

123. As per the contract between the parties, MEC area (meteorological laboratory area) was to be provided to the contractor by NPCC for construction of field officers colony, workshops, stores, mezzanines, etc.

124. A specified area was earmarked and handed over to the contractor for aforesaid purpose. The contractor commenced clearing and levelling operations in the area to make it fit for being constructed upon. After a while, NPCC directed contractor to shift from the area earmarked as MEC area and proceed to another site. At the new site, contractor had to redo the preparatory work before the site could be constructed upon.

125. NPCC denied the claims.

126. Pertaining to Claim No. 2 contractor contended before the learned arbitrator that MEC area was provided to it by NPCC for construction of its field officers colony, workshops, stores, etc. But, no access roads to MEC area were provided by NPCC, therefore, it had to rent land at Bathri for construction of labour sheds and had to take on rent a building at Goli for storage purposes. The contractor relied upon Clause 12 of the General Conditions of Contract, which provided that NPCC was to make available to the contractor land for construction of its field officers colony, workshops, stores, etc.

127. NPCC contended that as per Clause 9.2 of the Special Conditions of Contract the contractor was to make its own arrangements at its own cost for constructing quarters and other structures.

128. Learned arbitrator has noted that access road to MEC area was not made available by NPCC till as late as April 1986, i.e. about 17 months after award of work to the contractor. Learned arbitrator held that land for construction of buildings for use as infrastructure facilities was to be provided by NPCC.

129. The learned arbitrator has recompensed the contractor a sum of Rs. 5,250 towards the rent paid by the contractor for taking on lease the land and the building at village Bathri and Goli.

130. There is no infirmity in the decision of the learned arbitrator. Clause 12 of the General Conditions of Contract clearly provides that it is the responsibility of NPCC to provide land to contractor.

131. Clause 9.2 of the Special Conditions of Contract relied upon by NPCC reads as under:

9.2. Contractor shall make his own arrangements for constructing quarters and other structures required for his work at his own cost.

132. A bare reading of Clause 9.2 of the Special Conditions of Contract shows that it relates to developmental expenses to be incurred by the contractor on land provided to the contractor by NPCC. The learned arbitrator has awarded the sum of Rs. 5,250 on account of additional expenses incurred by contractor on account of non-availability of access roads to MEC area and not on account of developmental expenses incurred by the contractor.

133. Common sense and logic informs that before buildings can be constructed on a land, material would have to be brought to the site and for protection against vagaries of nature, temporary sheds would have to be constructed to store the material. Further, temporary sheds for labour would have to be constructed, for where would the labour reside during the period buildings are being constructed. The site of MEC area had, therefore, to be suitable for storing construction material and housing the labour. In the absence of a road to the MEC area the contractor was compelled to store the material and house the labour by taking on rent land and buildings elsewhere. Recompense by the learned arbitrator is, therefore, fully justified.

134. Learned Counsel for NPCC relied upon Clauses 12.2 and 16 of the General Conditions of Contract in support of his contention that the learned arbitrator was wrong in awarding any amount under this claim.

135. The said submission has to be not even taken note of by me, for the reason, these clauses were not relied upon before the learned arbitrator evidenced from the fact that in the pleadings of NPCC before the learned arbitrator no mention thereto has been made by NPCC and thus cannot be raised for the first time in the present proceedings.

136. Pertaining to Claim No. 5 under Section VI, case of the contractor before the learned arbitrator was that it undertook substantial developmental work involving jungle cutting and clearance, earthwork and constructing drystone walls in the land allotted to it by the NPCC in the MEC area, but it was prevented from using the said area because the land so developed by it was taken over by NPCC for locating its batching and mixing plant and another area was handed over to the contractor which area required preliminary development work before field officers colony, workshops, stores, etc. could be erected. The contractor claimed recompense for extra expenditure incurred on said account. The claim was in sum of Rs. 2,00,750.

137. NPCC contended that as per Clause 12.2 of the General Conditions of Contract the land which was to be allotted to the contractor was within the sole discretion of the Engineer-in-charge. It further relied upon Clause 12.4(iii) of the General Conditions of Contract which provides that contractor was bound to vacate the land on demand by the Engineer-in-charge. NPCC stated that as there is no provision in the contract for payment of developmental charges, thus contractor is not entitled to any developmental costs.

138. The learned arbitrator has allowed the claim of the contractor for developmental costs and has awarded a sum of Rs. 1,19,500, holding that the contractor was prevented from using the area developed by it and had to incur expenditure to develop other area for itself. Learned arbitrator has also noted that similar claim as raised by the contractor was also raised by NPCC against NHPC vide letter dated 27.01.1986 addressed to NHPC.

139. It is true that as per the contract no provision has been made for NPCC to pay money to the contractor for development of land on which field officers colony, workshops, stores, etc. were to be constructed by the contractor. Thus, contractor was obliged to incur the expenses from his own pocket. But this had to be incurred by the contractor only once. The contractor was not obliged to develop the land twice. In this context it may be noted that there is no prohibitory clause in the contract to the effect that if contractor was called upon to vacate a site, it would not be entitled to any compensation for redeveloping the alternative site.

140. Matter could be looked at from another angle. The first site which was developed by the contractor was used by NPCC for locating its batching and mixing plant. NPCC would have incurred expenses for clearing and developing the said site before it could set up its batching and mixing plant. Under the contract, the contractor was not obliged to clear and develop a site on which NPCC could set up its batching and mixing plant. Thus, NPCC was not entitled to enrich itself at the cost of the contractor.

141. I, therefore, find no error committed by the learned arbitrator.

142. As in the case of objections to the earlier part of the award, Shri S.K. Taneja, learned senior counsel for NPCC relied upon Clause 16.2 of the General Conditions of Contract in support of the contention that the arbitrator was wrong in awarding any amount under this claim. The said clause was not relied upon before the learned arbitrator evidenced by the fact that no mention thereto has been made in the pleadings of NPCC before the learned arbitrator.

143. Claims under Section VII related to alleged extra expenditure incurred by the contractor on account of non-taking over of acrow gantry and other materials belonging to NPCC after work of construction of diversion tunnel was completed by the contractor. Only 1 claim was raised under this section.

144. Case pleaded by the contractor before the learned arbitrator was that work of construction of diversion tunnel was fully completed by June 1987, But, acrow gantry and other materials were taken over by NPCC only in January 1989. The contractor had to incur expenses for watch and ward of these materials till they were taken over by NPCC.

145. NPCC relied upon Clause 23.4(ii) of the General Conditions of Contract which provides that all costs such as loading, transportation and unloading in respect of materials issued shall be borne by the contractor. NPCC further relied upon Clause 23.4(x) of the General Conditions of Contract which provides that on completion of the work/abandonment/cancellation, the contractor shall return all the materials lying in its custody to NPCC.

146. The learned arbitrator has referred to NPCC's letter dated 17.10.1987 (CA-15, Vol. XIX) and 20.07,1988 (CA-16, Vol. XIX) addressed to NHPC to draw an inference that acrow gantry and other materials were not taken over by NPCC due to delays attributable to the NPCC and thus has allowed an amount of Rs. 18,000 towards expenses incurred by contractor for securing safety of materials not taken over by the NPCC.

147. There is no infirmity in the reasoning given by the learned arbitrator. It is difficult to understand how Clauses 23.4(ii) and (x) of the General Conditions of Contract help the case projected by NPCC.

148. The two clauses provide that the contractor shall bear the cost of loading, unloading and transportation of equipment and material issued to it by NPCC and that upon completion of the works the contractor shall be bound to return the unused material and the equipment. The two clauses cannot be read to mean that NPCC would be entitled at its own free will to take delivery or repossess the equipment after work was completed at any point of time. The clauses cannot be read to mean that once the contractor, after completing the works, offers delivery of the machines entrusted to it and within reasonable time of the offer NPCC does not take delivery, the contractor would be liable to incur expenses towards safety and security of the machines.

149. Logic, fairness and equity demands that a person is entitled to be reimbursed the expenses which it incurs towards safety of belongings of another person. The contractor was not obliged to secure the safety of acrow gantry and other materials belongings to NPCC once the work had been completed and delivery thereof was offered to NPCC under Clause 23.4(x) of the General Conditions of the Contract.

150. Claim under Section VIII has been denied by the learned arbitrator. The contractor has been paid nothing. Since the contractor has not filed any objections to the award, I need not deal with the issues constituting claim under Section VIII.

151. Claim under Section IX related to the amount finally payable as per the final bill. The adjudication of the claim required the learned arbitrator to determine the extent of work done as per schedule of quantities specified under the contract; extra and additional items executed, deviation limits exceeded; and recoveries to be effected on account of material supplied by NPCC or by NHPC to the account of NPCC.

152. Since NPCC had raised counter-claims towards adjustments and rate at which recoveries had to be effected, while dealing with the finalization of the final bill, learned arbitrator has dealt with the said counter-claims of NPCC.

153. Really speaking, though labelled as counter-claims, in effect, NPCC was claiming adjustments.

154. Learned arbitrator has determined the final quantities of works executed in relation to the statement of reconciliation filed during course of arbitration proceedings by NPCC on 14.01.1992.

155. Learned arbitrator has accepted the said reconciliation statement filed by NPCC as admission of NPCC regarding extent of work done. Learned arbitrator has further noted that in respect of extra and substituted works as also works in respect whereof deviation limit was crossed, in the statement dated 14.01.1992, NPCC had not priced the same. In para 13.1 of the award (page 35) learned arbitrator has noted that in respect of deviated items, NHPC had paid to NPCC different rates than the scheduled rates, considering deviation limit to be 30%. Since learned arbitrator had held that the terms and conditions of contract between NPCC and NHPC was applicable to the contract between NPCC and the contractor, NPCC was liable to pay to the contractor for the quantities executed in excess of the 30% deviation limit.

156. Learned arbitrator has held that Rs. 77,10,856.17 was payable for the work done for the items of work specified in the schedule of quantities and applying 30% deviation limit, meaning thereby for the quantity of work done beyond 30% deviation limit, contractor was held entitled to extra payment. Learned arbitrator has clarified that only Rs. 23,47,146.05 from out of the sum of Rs. 77,10,856.17 represented the additional amount payable for excess work beyond the deviation limit of 30%.

157. Meaning thereby that a sum of Rs. 53,63,710.72 is the sum payable for the work done, applying the schedule of rates agreed between the parties.

158. Laying a challenge to the aforesaid finding by the learned arbitrator, Shri S.K. Taneja, learned senior counsel for NPCC urged that the learned arbitrator was not justified and, therefore, has acted illegally in treating statement of reconciliation filed on 14.01.1992. Second contention urged is that learned arbitrator was not justified and, therefore, has acted illegally in treating the terms of the contract between NPCC and NHPC as applicable to the contract between the contractor and NPCC. The third contention urged was that under Clause 18.2 of the General Conditions of Contract, decision of the Engineer-in-charge in deriving rates for variations was final and binding between the parties and, therefore, said dispute was non-arbitrable, being an excepted matter.

159. Pertaining to the statement of reconciliation filed before Justice H.R. Khanna (retd.) the learned sole arbitrator who was conducting the proceedings in January 1992, I have dealt with the objections raised by NPCC that said statement of reconciliation could not be relied upon and has been rejected by me in paras 37 to 44 above. I need not reiterate the objections and my reasons to reject the same.

160. Pertaining to the second objection whether terms and conditions of the contract between NPCC and NHPC were to be read as terms of the contract between the contractor and NPCC, I had dealt with the issue in paras 45 to 52 above. Therefore, I need not reiterate the objections and my reasons to reject the same.

161. The third objection, predicated on Clause 18.2 of the General Conditions of the Contract between the parties require noting of the said clause. It reads as under:

18.2. (i) The rates already provided in the Schedule of Quantities, shall apply in respect of the same item(s) of work to be executed irrespective of any variation.

(ii) In case same items are not available in the Schedule of Quantities, the rates of such items, as far as practicable, shall be derived from the quoted rates of analogous item(s) in the Schedule of Quantities after actual observance at site. The decision to select analogous item(s) shall be taken by the Engineer-in-charge which shall be conclusive and binding on the contractor.

(iii) Provided where some extra items and/or analogous items are not available in the Schedule of Quantities, the rates for such item(s) to be executed shall be determined by the Engineer-in-charge on the basis of actual analysed cost comprising of the cost of material to be supplied by the contractor (including transportation and taxes, levies if paid), labour operation of plant and machinery used for the work plus 15% to cover the overheads, profits, contractor's supervision and other charges, if any. The decision of the Engineer-in-charge in deriving rates as aforesaid, shall be conclusive and binding on the contractor.

162. A perusal of Clause 18.2 shows that finality is attached, under sub-para (iii) of the clause, to the decision of the Engineer-in-charge only to the rates derived.

163. Apart from the fact that issue of excepted matter was not urged before the learned arbitrator, it may be noted that the learned arbitrator has clearly noted that at no point of time NPCC determined the rates for the substituted items and for the quantities of works executed beyond deviation limit prescribed. Thus, where was the occasion for the learned arbitrator to exceed his jurisdiction in determining the derived rates.

164. Had the Engineer-in-charge determined the derived rates and was the contractor questioning the same, would an issue arise whether learned arbitrator could or could not have gone into the issue in view of Clause 18.2(iii) of the General Conditions of the Contract.

165. I, therefore, uphold the award pertaining to the findings returned in para 13.1 of the award.

166. The next issue discussed by the learned arbitrator while finalising the final bill is the extra items stated to have been executed by the contractor. Learned arbitrator has listed the extra items, being 15 in number, in Annexure B to the award.

167. Learned arbitrator has noted that these extra items and quantity executed was admitted by NPCC in the statement of reconciled quantities filed by NPCC on 14.01.1992.

168. Learned arbitrator, in para 13.2 of the award, has noted that pertaining to items at Sr. Nos. 1 to 4 and 6 to 11, NPCC had admitted the quantities and the rates. In respect of item at Sr. No. 5, learned arbitrator has noted that NPCC had admitted the quantity but not the rate. Considering the analysis of rate given by the contractor being Rs. 622 per metre, learned arbitrator has determined that Rs. 450 per metre would be a reasonable rate.

169. As regards the item at Sr. No. 12, learned arbitrator has noted that the contractor agreed to execute the extra work at the rates offered by M/s. IPPC when a meeting was held between the parties on 04.01.1987. Thus, item of work at Sr. No. 12 has been allowed at the rate at which M/s. IPPC have agreed to execute the work.

170. Challenging the said finding, Shri S.K. Taneja, learned senior counsel for NPCC urged that no meeting was held on 04.01.1987.

171. It appears to me that NPCC has decided to question just about everything. I may note that when required to admit/deny documents filed by the parties, contractor's document Annexure 7/1 being a copy of the minutes of the meeting dated 04.01.1987 was admitted by NPCC. Said fact stands recorded on the index of documents relied upon for Section VII of the claims (page 18 of Volume XIV of the record of arbitration).

172. The objection is wholly frivolous and is rejected.

173. Claim pertaining to Item No. 13 has been disallowed.

174. Pertaining to the work at Item No. 14, analysing the rates furnished by the contractor, as against Rs. 4,75,993.70 which was claimed, learned arbitrator has awarded Rs. 3,13,360.

175. The decision on the said item shows an application of mind by the learned arbitrator. The same cannot be questioned.

176. I may note that claim relating to Item No. 15 has been analysed by the learned arbitrator in the context of the drawing furnished by NPCC pertaining to excavation work to be executed for outlet portal. Learned arbitrator has noted that the said drawing did not include the work of excavation for stabilisation of the hill slope. Noting that said work was executed, learned arbitrator has noted that NHPC had allowed a rate of Rs. 140 per cum to NPCC. Learned arbitrator has noted that NPCC had agreed to pay for this extra item @ Rs. 60 per cum. Learned arbitrator has awarded the rate of Rs. 128.80 per cum.

177. If NPCC got Rs. 140 per cum for said item of work from NHPC I see no reason why contractor should not be paid Rs. 128.80 per cum.

178. I need only emphasize that the work in question was awarded to the contractor by NPCC on virtually back to back basis.

179. The next items to which objections have been raised is to the recoveries determined by the learned arbitrator as the entitlement of NPCC.

180. All and sundry objections have been raised to each and every paragraph of the award commencing from para 13.4.1 and ending on para 13.4.25.

181. It would take me another 30 pages to note each and every item of recovery dealt with by the learned arbitrator and the objections urged at the hearing by Shri S.K. Taneja, learned senior counsel for NPCC.

182. Had I been playing the game of cricket and was on the pitch as a batsman, I would have endeavored to score a double century. I have reached para 183 of my decision. To the reader, the decision would already be prolix. It is not a good practice to score a double century while writing judgments.

183. Here onwards, I would be brief.

184. Pertaining to items which were received by the contractor from the stores of NHPC, learned arbitrator has directed recoveries at the issue rate of NHPC. Claim of NPCC for 13% over and above the said issue rate has been denied. For items issued by NPCC, quantities issued have been noted and contractual rate of recovery has been applied. In respect of amounts withheld under running bills, with reference to the measurement books, decision has been taken on the matter in issue. Repair charges for machines, etc. have been worked out noting that repairs were done by NHPC in its workshop and considering the details of the repairs, amounts have been determined as recoverable. Similarly, in respect of hire charges for drilling equipment supplied by NPCC, learned arbitrator has considered which articles were consumable items, i.e. bits, and which items were non-consumable, i.e. drill rods, couplings, drifter rods, extension rods, adopters, etc. Holding that consumables could not be treated as hired equipment, at the agreed monthly rent, adjustment for the remaining has been given. Claim for materials consumed before permissible limits has been denied holding that the same was not established. I may clarify that penal recovery rate has been denied. Normal recovery rate has been allowed. Charges towards electricity consumed by the contractor have been noted. Credit for return of unused material has been determined in the context of the statement of recoveries filed by NPCC on 14.01.1992. Short return of unconsumed material has been considered and dealt with in the context of the evidence led.

185. A perusal of the various paragraphs of the award shows that issue of material supplied, consumed and returned, stands considered in the context of evidence. It is not within my domain to re-appreciate the evidence. Said findings cannot be questioned as if a first appeal on facts is being argued.

186. NPCC was not entitled to any profits on the material directly lifted by the contractor from NHPC. No role has been assigned to NPCC when contractor lifted the material from NHPC. I fail to understand how NPCC could claim a share, based on a percentage of the price, at which contractor lifted material from NHPC. Said organisation effected recoveries from the amount payable to NPCC at the said recovery rates. Thus, in turn, NPCC was entitled to recover from the contractor at said rates and no more.

187. The surge of objections pertaining to each and every finding in paras 13.4.1 to 13.4.25 is accordingly rejected.

188. Under Section X cost in sum of Rs. 25,000 have been awarded to the contractor. Noting that the arbitration proceedings lasted for nearly 6 years and more than 30 effective hearings, apart from numerous procedural hearings were held, sum awarded cannot be called unreasonable or excessive.

189. Time to pull down the curtain.

190. Objections to the award dated 30th October, 1996 published by Shri K.D. Thite vide IA No. 2654/1997 are dismissed.

191. The award dated 30th October, 1996 published by Shri K.D. Thite is made a rule of the court.

192. Post decretal interest from the date of decree till date of realisation is awarded to the contractor and against NPCC @ 10% p.a. (simple).

193. Cost in the sum of Rs. 10,000 in favor of the plaintiff and against the defendant is imposed.