CWHEC-HCIL (JV) Vs. CHPRCL

JUDGEMENT

(1.) The challenge in this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 read with Section 13 of the Commercial Court Act, is to the judgment dated February 20, 2017 of the learned Single Judge in OMP (COMM) 559/2016 passed in a petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 (for short 'A and C Act') whereby the learned Single Judge allowed the petition and set aside the Arbitral Award dated April 27, 2007.

(2.) By way of the Award dated April 27, 2007, the Arbitral Tribunal has accepted the claim of the appellant herein with regard to its claim that it was entitled to be paid for the work related to sub grade and has granted the same at the rate of Rs. 382/- per cubic meter. It further directed that the said rate would be subject to price adjustment in terms of Clause 47 of the Agreement between the parties. The respondent herein was directed to pay, as per Contract Clause 43.1 and 43.2 of the Contract Agreement.

(3.) Some of the relevant facts are, the respondent herein floated a tender for execution of the project of "Four laning of Km 0/500 to Km 52/700 of KolaghatHaldia section of NH-41. The appellant bid for the project and was awarded the Contract by a letter of acceptance dated November 22, 2001. It was the case of the appellant herein that earth with CBR value of 07 was suitable for the work of sub grade was only available at 14 places but the same could not be exploited due to availability of small quantity; same being inaccessible for construction machinery and transport vehicles and also the owner i.e Forest Department were not ready to lease the areas for extraction of soil. It was the case of the appellant that the efforts to get dredged soil through the effort of Project Director of the respondent from deposition pond, through Deputy Chairman Haldia Dock Complex did not mature as the material was not found suitable for sub grade construction. It is their case that they approached the Consultant and a Joint Survey was carried out from April to June, 2003 in 82 areas, out of which 14 areas, which were already found in February 2003 but could not be exploited for the reasons already stated above. It is their case, a meeting held on June 09, 2003, the position about non availability of suitable materials for sub grade work was put forth and explained with test results and photographs of the area. The Engineer for the project, Ms/ CES, brought out a proposal during discussions of using fly ash blended with sand in suitable proportion as fill material for sub grade work.