NTPC LTD Vs. DECONAR SERVICES PVT LTD

JUDGEMENT

(1.) The Appellant assails the Order of the learned Single Judge dated 16.12.2009 in terms of which the Appellant's Objections to a composite Award passed in respect of the two contracts came to be dismissed. The first contract was executed on 12.10.1987 and was with regard to the construction of 100 'A' and 'B' type quarters; the second contract was executed on 23.11.1987 with regard to 68 'B', 'C' and 'D' type quarters. Learned counsel for the Appellant clarifies that the Appellant was not desirous of entering into a contract with the third party who was L-1 because of some previous unsatisfactory transactions. Since the Bid of this third party was lower than that of the Respondent before us, the Respondent agreed to give a sixteen per cent rebate, ostensibly to match the third party/L-1. The finding in the Award to the effect that the Appellant was responsible for a delay of six months, out of a total delay of thirty two months, has not been controverted before us. The contention of the Appellant is that the Arbitrator had no jurisdiction to pass any Award in respect of the delayed period in view of Clause-6 of the First Agreement, which reads as follows:- 6.0 The total contract value and the unit rates shall remain firm during the execution of the contract and no variation on whatsoever account shall be accepted by NTPC. However, the total contract price is subject to change due to quantity variation based on the unit rates indicated in Appendix D in accordance with the provisions contained in general conditions of contract for Civil works.

(2.) Reliance has also been placed on an amendment to the General Conditions of Contract in which the parties have agreed to substitute Clause 53/53A with the following:-

(3.) On the first question, the learned Single Judge has pithily observed that the arbitration did not commence through a petition under Section 20 of the Arbitration Act, 1940 ('Act' for short); on the contrary, the Arbitrator was chosen by the Appellant itself and accordingly claims had been referred to the Arbitrator by the Appellant. If it was the case of the Appellant that these claims were 'excepted matters', at that initial stage itself the Appellant should have declined to refer the claims to the Arbitrator. It is a matter of regret that the Terms of Reference to the Arbitrator have not been filed by the Appellant either before us or before the learned Single Judge. The question that arises is whether, regardless of the reference of these claims to the Arbitrator, the Appellant can nevertheless contend that the claims were not arbitrable as they fell in the genre of 'excepted matters'. Reliance has been placed by Mr. R.K. Joshi, learned counsel for the Appellant, on the following observations of the Division Bench in Delhi Development Authority vs. Jagan Nath Ashok Kumar, 2001 89 DLT 668, with which we respectfully concur:-