THE NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. AFCONS

JUDGEMENT

(1.) This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 14.08.2017 passed by the Arbitral Tribunal. The challenge is confined to the grant of claim no. 1 and claim no. 3.

(2.) As far as claim no. 1 is concerned, it is submitted by the learned Additional Solicitor General (hereinafter referred to as the 'ASG') that the Engineer while recommending the grant of extension of time for completion of work, had opined that the slow rate of progress achieved was due to respondent's own inefficiency, poor standard of equipments and weak project management. It was further recommended that the respondent is not entitled to any additional financial compensation or costs as the respondent's plant and equipment had never been idle as areas were also available for the respondent to work. It is submitted that in terms of Clause 44.2 of the Conditions of Contract, it was the Engineer who was to decide whether and by how much the contract price is to be increased due to 'Compensation Events' and whether and by how much the 'Intended Completion Date' is to be extended; the Engineer having recommended that the respondent is not entitled to any increase in the contract price, the Arbitral Tribunal has erred in granting the same under claim no. 1 in favour of the respondent.

(3.) It is further contended by the learned ASG that in any case, the Arbitral Tribunal having awarded additional costs on account of Site and H.O. Overheads due to delay in completion of project in favour of the respondent, further amount on account of loss suffered due to lost opportunity to earn profit out of resources owing to delay in completion of works could not have been granted in favour of the respondent by the Arbitral Tribunal.