SHOBHA CONSTRUCTIONS SRUTHILAYAM Vs. GENERAL MANAGER TELECOM, B S N L ; P PURUSHOTHAMAN - ARBITRATOR AREA MANAGER

JUDGEMENT

(1.) This appeal arises from the order passed by the Court of the Additional District Judge - I, Alappuzha on 25.11.2015 in O.P. (Arb.)No.24 of 2008, an application filed by the appellant under section 34 of the Arbitration and Conciliation Act, 1996, with a prayer that the award passed by the Arbitrator on 10.12.2007 may be set aside. By the impugned order, the court below dismissed the application. The brief facts of the case are as follows:

(2.) The work of laying optical fibre cable and allied works on the Kayamkulam DLC-Puthuppally DLC, Kollakadavu-Karakkadu and Olakettiyambalam-Kuttitheruvu routes were awarded to the appellant by the Bharat Sanchar Nigam Limited (hereinafter referred to as "the BSNL" for short). In section 14 of the tender document which contains the schedule of rates for cable construction works, the BSNL had estimated the rate for providing RCC protection at site to HDPE or GI pipes at the rate of Rs.2,718/- per meter. The contractor had to arrange the materials required for concreting including water. The appellant quoted 95% above the estimate rate in respect of two works and 74% above the estimate rate in respect of another work. After the work was executed, he raised a final bill claiming payment for concreting work at the rate of Rs.5,300.10 per meter in respect of two works and at the rate of Rs.4,729.32 per meter in respect of yet another work. When the final bill was not paid, he sent a letter dated 23.3.2005 (marked as document No.13 before the Arbitrator) with a request that the payment may be made at the rate of Rs.1,500/- per cubic meter as was given to other contractors for similar works. Thereupon, the final bill was paid and the security deposit was also refunded. Months later, the appellant invoked the arbitration clause contained in the agreement between the parties. A reference was accordingly made to the Arbitrator. Before the Arbitrator, the appellant filed a claim statement contending that the BSNL cannot rely on the letter dated 23.3.2005 to deny him payment at the rates quoted by him in his bids. It was contended that in the tender document the estimate for the work was shown as Rs.2,718/- per meter, that he had quoted 95% above the estimate rate in respect of two works and 74% above the estimate rate in respect of yet another work and as his bids were accepted and the work order was issued, he is entitled to be paid at the rate quoted by him in the tender.

(3.) The BSNL entered appearance and filed a statement of defence contending that the figure shown in the tender document namely Rs.2,178/- per meter is a mistake. It was contended that instead of the words 'per cubic meter' the rate was shown as 'per meter'. They also contended that if the contention of the appellant is accepted, the cost for concreting would come to Rs.87,450/- per cubic meter and that such a claim is neither genuine nor acceptable. They contended that when the mistake was brought to the notice of the appellant, he agreed to limit his claim to Rs.1,500/- per meter, being the rate awarded to other contractors for similar works. It was contended that payment was accordingly made and the security deposit was also refunded and therefore, the claim is untenable.