ARVIND CONSTRUCTION CO PRIVATE LIMITED Vs. ENGINEERING PROJECTS

JUDGEMENT

(1.) -

(2.) OBJECTIONS to the award dated 31.8.90 made by theArbitrator, Shri Prakash Narain, former Chief Justice, inrelation to a contract dated5.5.80 had been filed by respondent. The respondent has challenged the award onmany grounds. Shri V.R-Reddy, learned Additional Solicitor General who appearedfor respondent, at the outset argued that the award was a non-speaking award andrespondent is a Public Sector Undertaking and, therefore, learned Arbitrator wasunder a bonded legal obligation to make a speaking award. Mr.Reddy has furthercontended that the Arbitrator has committed legal misconduct by giving a lumpsum award and not giving claim-wise award.

(3.) . Repelling the contention of the respondent regarding claim of demobilisation being wrong on the face of it Mr.Jaitley contended that the respondent repatriated its own employees to India because of hostility between Iraq and Iran. In anycase Mr.Jaitely argued that this objection was not taken by the respondent and hecannot be permitted to argue if the same had not been taken or pleaded. In supportof his submissions, he has cited Madan Lalv. Sunder Lal andAnr. AIR 1967 SC 1233.Mr.Jaitely argued with emphasis that nothing turned on the minutes dated 2.5.84 asit only reflected that the petitioner in right earnest agreed to complete the balancework and rectification work covered under existing contract dated 15.3.1980 as perthe terms and conditions of the Agreement. But that does not follow that by signingthat minutes the petitioner had given up his rights regarding recovery of priceswhich petitioner has paid on account of work being carried out for a period beyondwhat was contemplated vide Agreement dated 5.3.1980. As a matter of fact, till14.5.1981 only 34% of the work was done when the contract period was over andwork had not been completed and admittedly on the assurance of the respondent,the petitioner carried on the work and completed approximately 92% work by June,1982 and thereafter kept office for rectification of the modified works till 1986 andspent on establishment and on such modification. Mr.Jaitely has also argued that inJuly, 1981 for a similar work one Mr.K.P.R. Reddy was given contract and what thepetitioner had demanded from the respondent that at least same rate be given to thepetitioner as has been given to said Mr.K.P.R. Reddy. In this regard he has reliedupon the affidavit filed by the petitioner before the Arbitrator particularly paragraph-7 of the said affidavit that the petitioner carried out the work after 14.5.1981on specific assurance given to the petitioner by the then Chairman-cum-ManagingDirector, Shri O.P.Narula, and it was contended that that work has not progressedas it ought to have been and it was not possible for the petitioner or for therespondent to anticipate any completion date. The petitioner only demanded actualcost plus 10% vide their letter dated 16/04/1982 addressed to Chairman-cum-Managing Director of the respondent and they had specifically mentioned that itwas not possible for claimant to continue at the project if payment of cost plus 10%profit basis for the work beyond 14.5.1981 was not approved and it is too late in theday for the respondent to plead that the Arbitrator has wrongly awarded the awardin favour of the petitioner in view of the reply of the respondent dated 10.5.1982.Mr.Jaitely has also contended from the letter dated 29/11/1980 Ex.C-114makes it clear that work was suspended and respondent had allowed the suspensionof the work from 31st 0ctober, 1980 and as a matter of fact has absorbed the availablewilling workers, who stayed on at Baghdad. Mr.Jaitely has invited the attention ofthis Court to Ex.C-93 letter written by the petitioner to the respondent dated 8/10/1980 in which it has been specifically mentioned that since the outbreak ofwar between Iraq and Iran, work was completely paralysed and was at standstill.The letter further stated that due to the insecure and unsafe conditions prevailing atthe site on account of frequent air-raids, petitioner's workers represented to therespondent as well as to the Indian Embassy for repatriation with one monthadditional wages and their request was acceeded to on September 30,1980. Mr.Jaitelyhas further contended that the repatriation of Indian workers from Baghdad wasmade by the Indian Embassy and respondent's office at Baghdad and in this relationhas shown Ex.C-104 a letter written by the petitioner dated 31.10.1980 to therespondent mentioning inter alia that in accordance with the decision taken by theIndian Embassy and respondent's office in Baghdad, workers were paid onemonth's additional wages and repatriated back to India. He has further invited theattention of this Court to Ex.C-106, a letter written by the petitioner to the respondentdated 3.11.1980 incorporating the Telex message received by the petitioner from itsBaghdad office:-