AVNISH KUMAR Vs. NORTHERN RAILWAY

JUDGEMENT

(1.) The challenge in this petition under Section 34 of the Arbitration & Conciliation Act, 1996 ('Act of 1996', for short) is, to the Award dated September 14, 2018 passed by the learned Arbitrator, whereby the learned Arbitrator has dismissed the claims set up by the petitioner herein.

(2.) The facts as noted from the record are that, the respondent floated a tender dated August 03, 2006 for carrying out certain construction works at Katra Railway Station (then at the proposal stage) for an approximate amount of Rs.2.15 Crores (excluding cost of cement, steel etc. which were to be supplied by the Railways free of cost, as per the required specifications). The petitioner was declared L-1 with its bid and accordingly awarded the contract on December 06, 2006. Thereafter, Northern Railways and the petitioner entered into the Contract Agreement dated March 09, 2007 ('Contract Agreement', for short). The scope of work of the contract comprised of execution of interior and exterior wall finish and floor finishing works in station building including construction of 90 bedded dormitory accommodation at first floor and construction of 20 bedded running room complex including related ancillary works at proposed Katra station UHP-Katra section in connection with USBRL project.

(3.) It was the case of the petitioner that the stipulated date of completion of work was February 18, 2008. According to the respondent, the completion period was of fourteen months and hence, the stipulated period of completion of work was February 05, 2018. It was the case of the petitioner that, it had mobilized adequate plant and machinery along with other requisite resources so as to avail bonus as per clause 2A of Contract Agreement and to save time related fixed overheads. The date of commencement of work was December 19, 2006. Since the very commencement, the execution of works was delayed inordinately due to a number of delaying events beyond the control of the petitioner and which could not be reasonably foreseeable at the time of submission of bids resulting in slippage in the planned progress of work. According to the petitioner, this aspect was being regularly informed to the respondent. In substance, it is the case of the petitioner that delay was wholly attributable to the respondent. It is the stand of the petitioner that even after eleven months of allotment of work to the petitioner on December 06, 2006, i.e., around October, 2007, the respondent was not sure of the scope of work. The respondent had given wrong estimation of quantities for which the cost of the contract had gone up by 45%. The petitioner's case was that the respondent failed to give the drawings and specifications and the revised G.A. of the station building was only received on August 07, 2007, i.e., after nine months from the start of the work. That apart, the first floor plan of the station building was received on October 01, 2007, i.e., after eleven months. Due to lack of coordination between the civil and electrical wings of the Railways, not even a single drawing of the electrical layout was received. Vide letter dated January 30, 2008 the petitioner informed the Deputy Chief Engineer, Northern Railway, regarding delay in the sanction of corrigendum, delay in finalization of finishing item, non-payment of NS rates for extra items and regarding incurring of extra expenditure and also requested extension of time upto March 31, 2009 with price variation clause without penalty and revision of rate to cover additional financial burden for the delay on the part of the respondent. It is the case of the petitioner that despite the delay on the part of the respondent the subject work was completed by the petitioner on December 31, 2010. Upon completion of the work, the petitioner requested the respondent to release the justified payments which are being held up, along with price variations vide letter dated July 12, 2011. It is the stand of the petitioner that respondent drew up a grossly undervalued final bill with dated November 26, 2011, which the petitioner was forced and coerced to sign under the threat that if the same is not signed, no payments would be released. The petitioner stated that the bill did not include several of its claims which were being pursued by it. Thereafter the completion certificate was issued on July 28, 2012. The petitioner stated that the respondent failed to release the payments in the form of price variation upto October 31, 2010 and the delay and prolongation of work for a period of forty eight months is attributable to the respondent. A plea was also raised that liability on account of revised sales tax from 4.2% to 8.4% was also not paid by the respondent. No payment was made on account of losses incurred due to idling resources, man power and machinery; on account of interest against running account bills and no compensation was paid against loss of profits. In the aforesaid background, the learned Arbitrator was appointed by this Court. The claims of the petitioner before the learned Arbitrator were the following:-