NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. BBEL-MIPL

JUDGEMENT

(1.) This appeal, under clause (c) of Section 37(i) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") impugns order, dated 23rd November, 2016, whereby the learned Single Judge has dismissed OMP 350/2015, filed by the appellant herein under Section 34 of the Act, per consequence affirming award, dated 27th February, 2015, passed by the learned Arbitral Tribunal adjudicating the dispute between the appellant and the respondent.

(2.) The challenge, before the learned Single Judge, as well as before this Court in appeal therefrom, is limited to the issue of whether price adjustment, claimed by the respondent and allowed by the learned Tribunal, was available to permanent works referred to in the Bill of Quantities (hereinafter referred to as "BOQ"), in the contract entered into between the appellant and the respondent, or was applicable only to variations.

(3.) The learned Single Judge has noticed the fact that the said issue was not res integra, having been decided in an earlier dispute between the appellant and M/s KMC-RK-SD (JV), with respect to the same work forming the subject matter of the present appeal, as, prior to awarding the said work to the respondent, the appellant had awarded it to M/s KMC-RK-SD (JV). The learned Single Judge has observed that the dispute regarding availability of price adjustment on permanent works referred to in the BOQ, had arisen between the appellant and M/s KMC-RK-SD (JV), which had been decided by the learned Arbitral Tribunal, constituted in that case, in favour of M/s KMC-RK-SD (JV), holding the claim for price adjustment, on permanent works under the BOQ items, to be sustainable in law.