National Highways Authority Of ... vs M/S Pcl Suncon (Jv)
2015 Latest Caselaw 146 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 09.01.2015

+       FAO(OS) 5/2015

NATIONAL HIGHWAYS AUTHORITY OF INDIA ... Appellant

                                         versus

M/S PCL SUNCON (JV)                                            ... Respondent
Advocates who appeared in this case:
For the Appellant     : Ms Meenakshi Sood
For the Respondent    : Mr Amit George

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CAV 12/2015 The learned counsel for the respondent /caveator is present. The caveat stands discharged.

CM 309/2015 Allowed subject to all just exceptions.

FAO(OS) 5/2015 & CM 308/2015

1. This is an appeal against the judgment dated 14.10.2014 delivered by a

learned Single Judge of this Court in OMP 48/2013, which was a petition under

Section 34 of the Arbitration and Conciliation Act, 1996, challenging the Award

dated 08.05.2012 made by the Arbitral Tribunal.

2. The only issue which was raised before the learned Single Judge and

considered by him was whether [notwithstanding the fact that the contract

obtaining between the parties did not provide for the source from which

Crushed Rubber Modified Bitumen (CRMB) had to, be obtained to execute the

work entrusted to the respondent], the petitioner could insist that CRMB had

to be sourced from a refinery? The work involved was "four laning and

strengthening of the existing two-lane highway section from km 320.00 to km

398.75 on NH-2 (Construction Package V-C). The work had to be executed in

the State of Jharkhand.

3. Without getting into the details, which have been elaborated in the

impugned judgment, the fact of the matter is that the contract was admittedly

silent as to the source of the CRMB. In other words, it was open to the

respondent to have the CRMB blended at site or to obtain it from a refinery or

refineries. The respondent had indicated that it would blend the CRMB at

site. However, the petitioner insisted that it should be procured from a

refinery. The result being that the respondent was compelled to procure the

CRMB from a refinery. This was so, although there was no such stipulation in

the contract.

4. The learned counsel for the appellant, however, urged that technical

specification 117 provided that the material used in the execution of the work

would require the approval of the engineer. It was contended that the engineer

was within his right under the contract to direct procurement of the CRMB

from a refinery for the purposes of the said work. The fact of the matter is that

the engineer, in the first instance, had indicated that the CRMB could be

prepared at site. At the insistence of the appellant, subsequently, the engineer

changed his opinion and stated that the same should be procured from a

refinery.

5. We have examined the impugned judgment in detail and we have also

heard the learned counsel for the parties. It is evident that the learned Single

Judge has examined the core issue, which has been pointed out above, in great

detail and has looked at all the arguments advanced by the learned counsel for

the parties. Apart from the fact that no interference is called for at this stage in

this appeal inasmuch as we do not find any perversity in the reasoning adopted

by the learned Single Judge or by the Arbitral Tribunal in awarding the claim

of the respondent to the extent of the extra costs which the respondent had to

bear on account of the insistence of the appellant that the CRMB should be

procured from a refinery and not be blended at site, it is clear that the contract

did not stipulate that the CRMB had to be procured from a refinery. It was

open to the respondent to either procure it from a refinery or blend it at site.

The choice of the respondent was to blend it at site. However, since the

appellant insisted that it should be procured from a refinery, the burden would

have to be borne by the appellant. This is exactly what the Arbitral Tribunal

has awarded and this is what has been confirmed by the learned Single Judge.

6. Consequently, we see no reason to interfere with the impugned

judgment. The appeal is dismissed.

                                          BADAR DURREZ AHMED, J




JANUARY 09, 2015                           SANJEEV SACHDEVA, J
SR