Orissa High Court
Paradip Port Trust vs M/S. Cimmco Birla Ltd on 11 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.35 Of 2015
(Through video conferencing mode)
Paradip Port Trust .... Appellant
Mr. Ramakanta Mohanty, Sr. Advocate
-versus-
M/s. Cimmco Birla Ltd. .... Respondent
Mr. S. Chaudhury, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order 11.01.2022
No.
15. 1. Mr. Mohanty, learned senior advocate appears on behalf of
appellant and submits, the appeal is directed against judgment dated
16th September, 2015 passed by the learned District Judge rejecting his
client's challenge to award dated 14th March, 2012. He submits, the
facts stood admitted in the reference but the Tribunal made some
findings on 'force majeure', which are perverse. The Court below did
not appreciate the perversity and hence the appeal. He refers to
paragraphs 18 to 22 in the award. He submits, paragraph-18 was a
contention on 'force majeure' that the Tribunal decided in favour of
his client. The second contention is in paragraph-19. The contention
was that by reason of lock out in Bharat Works Factory of claimant,
// 2 //
from 15th November, 1998 to 31st January, 1999, there was delay. This
was construed as a 'force majeure' situation by the Tribunal. Mr.
Mohanty accepts that paragraph-20 dealing with the super cyclone on
29th October, 1999 was an act of God and therefore covered by 'force
majeure'. He however submits, the amount of latitude shown by the
Tribunal on holding in favour of claimant on this contention was
beyond the evidence. Appellant itself resumed work activities in the
Poet fifteen days after the cyclone but claimant's personnel admittedly
visited two months after it. Next contention of 'force majeure' was
dealt with in paragraph-21 of the award. It was on strike resorted to by
employees of appellant. Paragraph-22 was contention raised by
claimant regarding hooliganism resorted to by passing connected with
previous contractor of appellant. He submits, the Supreme Court by
judgment dated 5th January, 2022 in Civil Appeal nos.169-170 of
2022 (State of UP v. M/s. Mcdowell and Company Ltd.) held that
for invoking 'force majeure', there must be some act of God.
2. On query from Court Mr. Chaudury, learned advocate
appearing on behalf of respondent submits, cancellation clause-23 in
general conditions of contract stands quoted under paragraph-24 in the
award.
// 3 //
3. The Court below in paragraph-11 of impugned judgment
recorded the facts. Paragraph-11 is reproduced below.
"11.On careful scrutiny of the record, impugned
Arbitral award in the light of submission of both the
Counsel for the petitioner and the O.P., it shows the
following are not the disputed facts:
(i) PPT had floated a tender for execution on the
work, Designed, Manufacture, supply, Erection and
commissioning of one number of stacker cum reclaimer
of capacity of 2500 MTPH,35 meters Boom length.
(ii) O.P. (claimant's company) offered contract value
of Rs.823 lakhs.
(iii) Arbitration Agreement was executed in between
the claimant company and respondent-PPT with certain
terms and conditions to commence the work on
26.3.1998 and its completion on 25.5.2000.
(iv) On 28.3.98 the claimant company deposited 10%
of the contract value i.e. Rs.82,30,000/- in shape of Bank
Guarantee towards performance security.
(v) 99.995% of the contract work was compelted and
balance of 0.005% was remained to be executed. On the
request of both the parties, the same was extended up to
11.6.2001.
(vi) On dtd. 13.7.2001, the contract was cancelled
with immediate effect with forfeiture of performance
security.
// 4 //
(vii) Balance of 0.005% of the contract work was
completed by the respondent-PPT by other agencies
under its supervision."
4. Appellant will be finally heard on 20th January, 2022. Court
will be interested to hear on applicability of the cancellation clause to
the facts. Court also notices that the agreement provides for expansion
of meaning of 'force majeure' by several clauses.
5. List on 20th January, 2022.
(Arindam Sinha)
Judge
Sks
