Madras High Court
G.A.Projects Pvt. Ltd vs Kamarajar Port Ltd on 15 November, 2021
OSA (CAD) No.107 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.11.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
OSA (CAD) No.107 of 2021
G.A.Projects Pvt. Ltd
No.3, K.H. Road
Ennore
Chennai 600 057. .. Appellant
Vs.
Kamarajar Port Ltd
3rd Floor, Jawahar Building, 1
7, Rajaji Salai
Chennai 600 001. .. Respondent
Appeal filed under Section 13(1) of Commercial Courts Act
against the order dated 14.09.2021 in Arb. Appln. (Comm.Div) No.167
of 2021.
For the Appellant : Mr.Om Prakash
Senior Counsel
for Ms.Tanya Kapoor
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appeal is directed against an order dated September 14,
2021 passed on an application under Section 9 of the Arbitration and
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OSA (CAD) No.107 of 2021
Conciliation Act, 1996.
2. The grievance of the appellant contractor is that some five
years after a road was constructed and made over by the appellant to
the respondent employee, the Arbitration Court has appointed experts
to look into the condition of the road. The appellant asserts that no
inspection conducted now will reveal the nature or character of the
road that was constructed and made over by the appellant to the
respondent in the year 2016.
3. The contract between the parties envisaged the construction
of some internal roads by the contractor. The contract was time-bound
and it is the appellant's contention that following the delay on the part
of the employer in releasing the land and in taking other measures,
the contractor was constrained to terminate the contract and make a
demand for the payment due to the contractor.
4. In terms of the arbitration agreement between the parties, a
reference was instituted, in which the employer also carried a counter-
claim. The Arbitrator allowed a substantial part of the appellant's claim
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OSA (CAD) No.107 of 2021
which came to be challenged in proceedings under Section 34 of the
Arbitration and Conciliation Act, 1996 and succeeded, primarily on the
ground that two documents may not have been appropriately
considered or due opportunity given to the employer to deal with the
same. The Arbitration Court also referred to Clause 22 of the
agreement that pertained to a default period during which the
contractor would be liable to repair the road. The appellant's endeavor
to have the order setting aside the award annulled failed in the appeal.
Admittedly, the parties have carried the disputes to a de novo
reference.
5. The appellant submits that it is utterly futile to make any
attempt to inspect the present condition of the road. According to the
appellant, no expert would be able to assess what the condition of the
road may have been in the year 2016 by looking at it or inspecting the
same in the year 2021. The appellant also refers to the contract
requiring an engineer to be appointed and for the engineer to oversee
the work done by the contractor. According to the appellant, the
engineer had required several tests to be undertaken and over 2200
tests had been undertaken in course of the work done by the
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OSA (CAD) No.107 of 2021
appellant. In certain cases, these tests reflected perceived anomalies
or defects on the part of the contractor and this, according to the
appellant, formed the basis of the counter-claim which was taken by
the employer before the Arbitrator. The appellant also says that if the
results of any tests were disputed by the contractor, the contract
envisaged a joint inspection to be conducted. It is, in such
circumstances, that the appellant says that the order impugned
appointing independent experts from the IIT and from the Civil
Engineering Department may not be appropriate.
6. At the end of the day, what is to be assessed in course of the
fresh reference is the extent of the work which has been done by the
appellant and the liability of the employer in such regard. In addition, if
there are any counter-claims, the same have to be looked into. It is
necessary, for such purpose, that the condition in which the roads
were handed over by the appellant to the employer must be looked
into. While it is difficult to imagine for a lay person as to what an
expert would look into a road five years after its installation, but that is
why the expert is considered to be the expert in the field. There does
not appear to be any perverse exercise of the discretion clearly
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OSA (CAD) No.107 of 2021
available with the Arbitration Court. However, whatever objections the
appellant may have against the report or reports filed by the experts
may be canvassed before the Arbitral Tribunal in accordance with law.
It must not be forgotten that the final assessment will be made by the
Arbitrator and if any piece of the experts' opinion is not based on
objective criteria in terms of the contract, including IS 456 or like
parameters which are recognised in the field of road construction, it
will be open to the appellant to point out the same.
7. The judgment and order impugned do not call for any
interference, though the views expressed by the experts may be
challenged in accordance with law by the appellant herein.
8. OSA (CAD) No.107 of 2021 is dismissed. CMP No.18256 of
2021 is closed. There will be no order as to costs.
(S.B., CJ.) (P.D.A., J.)
15.11.2021
Index : Yes/No
kpl
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OSA (CAD) No.107 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(kpl)
OSA (CAD) No.107 of 2021
15.11.2021
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