Dhiren Kumar Singh vs State Of Odisha And Another
2022 Latest Caselaw 2084 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            ARBA No.17 Of 2019
                           (Through hybrid mode)

        Dhiren Kumar Singh                   ....            Appellant

                                                           Mr. J.K.
                                                         Mohapatra,
                                                          Advocate

                                  -versus-

        State of Odisha and another          ....         Respondents

Mr. P.C. Panda, AGA

CORAM: JUSTICE ARINDAM SINHA Order ORDER No. 04.04.2022

5. 1. Mr. Mohapatra, learned advocate appears on behalf of

appellant and submits, impugned is judgment dated 14th May, 2019,

whereby award dated 1st May, 2017 was erroneously set aside. He

submits, State was employer. It found that the work contemplated to

be of 10 months required 39 months, per letter dated 25th January,

2005 of Additional Secretary to Government. He draws attention to

annexure-B1 in the affidavit objection filed by respondent, to show

post fact extension of time approval up to 31st January, 2000 without

compensation or either side and without leave of penalty, as by said

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letter.

2. He submits, date of commencement given in the objection is 3rd

October, 1996. Ten months therefrom expired on 2nd August, 1997. He

refers to agreement clause 47, reproduced below.

"If the Contractor fails to complete the work or a designated part thereof by the stipulated completion date he shall pay liquidated damages at one tenth of one percent of contract value for each incomplete part per day of delay in completion and handing over to the Government. The amount of liquidated damages shall however be subject to a maximum equal to the amount of security for performances as payable under Clause GC-5. Delay requiring payment of liquidated damages in excess of the amount of security for performance will be sufficient cause for termination of contract and forfeiture of all security for performance."

He submits, in effect the contract was for a long period and the

Tribunal went into the facts to award price adjustment. There was

nothing wrong in the award that could be said to be against public

policy, let alone any patent illegality appearing on face of it.

3. Mr. Panda, learned advocate, Additional Government Advocate

appears on behalf of respondent (State) and draws attention to the

affidavit objection. He submits, disclosed is extract of price

adjustment clause-33, which clearly says that provision of price

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adjustment may be adopted in respect of works contract, the period of

completion of which is one year or more.

4. It stands demonstrated that the work was completed in a period

more than one year. The completion was accepted by the employer,

who did not impose liquidated damages for delayed completion.

Therefore, the works contract having been executed in a period more

than one year, the Tribunal applied the price adjustment clause.

Nothing has been shown that application thereof was erroneous,

resulting in patent illegality.

5. Impugned judgment is set aside in appeal and the award

restored.

6. The appeal is disposed of.

(Arindam Sinha) Judge Sks