CALCUTTA Vs. CWHEC

JUDGEMENT

(1.) Calcutta Haldia Port Road Company Ltd., a company constituted under Section 3 of the National Highways Authority of India Act, 1988, has filed the present petition under section 34 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act') impugning an arbitral award dated 22.04.2009 (hereafter 'the impugned award') entered by the Arbitral Tribunal.

(2.) The petitioner had floated a tender for execution of the project of "Four laning of Km 0/500 to Km 52/700 of Kolaghat-Haldia section of NH-41 in the State of West Bengal-Package WB (Haldia)" (hereafter 'the works'). The respondent - a joint venture formed between two companies, M/s China National Water Resources and Hydropower Engineering Company of P.R. China (subsequently named as Syno Hydro Power Engineering Corporation) and M/s Harish Chandra (India) Ltd. - bid for the aforesaid works. The respondent's bid was accepted and by a letter of acceptance dated 22.11.2001, the petitioner awarded the contract for execution of the works at a contract price of Rs. 2,19,98,91,379/-. Subsequently, the parties also executed an agreement on 24.07.2002 (hereafter 'the Agreement') and the date of commencement of the Agreement was fixed as 10.09.2002. The Agreement was an item rate contract and the respondent had quoted rates for various items as detailed in the Bill of Quantities (BOQ).

(3.) Certain disputes arose between the parties; the respondent invoked the arbitration clause and the Arbitral Tribunal consisting of three members was constituted. The respondent preferred seven claims before the Arbitral Tribunal. Whilst, the Arbitral Tribunal rejected the first four claims, the Arbitral Tribunal awarded a sum of Rs. 13,03,690/- against claim no.5 being additional payment on account of sand filling under Box culverts in lieu of earth filling as per BOQ Item No. 5.42; a sum of Rs. 13,00,495/- ( as against Rs. 19,60,167/- claimed by the respondent) against claim no.6 which related to extra payment, for using Grade-III filter media as directed in place of Grade-I filter media; and Rs. 1,42,543.90/- for non-payment of epoxy bonding layer. Notice in the present petition was issued limited to the award made by the Arbitral Tribunal against claim nos. 5 and 6 as noted above. Submissions