SUNSHREY ASSOCIATES Vs. CHAIRMAN, KANDLAPORT TRUST

JUDGEMENT

(1.) The petitioner, a registered partnership firm, was awarded contract for DEVELOPMENT OF LAND INCLUDING ROAD ETC. OUT SIDE WEST GATE NO.2, AT KANDLA AND CONSTRUCTION OF RCC BORED CAST IN SITU PILES, BRIDGE ACROSS MAIN CREEK. on 19.03.2002 vide Work Order No.C.N./WK/5403/152. The contract was stipulated to be completed on 1st December, 2002 but actually the work came to be completed only on 09.04.2003. The petitioner sought extension to complete the work firstly for the period 02.12.2002 to 28.02.2003 which came to be granted by the respondent-authority without any levy of compensation. Second extension was sought by the petitioner for the period 1st March, 2003 to 27th March, 2003 which also came to be granted without levy of compensation. The petitioner sought third extension for the period 28th March, 2003 to 15th April, 2003. However, vide communication dated 29.03.2003 extension for the period 28.03.2003 to 8th April, 2003 came to be granted by levying compensation for the delay at the rate of 1% of contract value per week or part thereof under General Condition No.52 of the Conditions of Contract. It is this levy of compensation, which is the bone of contention between the parties.

(2.) On 15th April, 2003, the petitioner addressed a communication to the Chairman of Kandla Port Trust calling upon him to waive the penalty imposed and grant extension upto 10th April, 2003. Though various subsequent communications were addressed by the petitioner, for the present, it is not necessary to refer to the same. Suffice it to state that the Chairman, namely the respondent, replied to petitioner only on 28/30-03.2005 through the Chief Engineer wherein it was stated that request contained in letter dated 12.03.2004 had not been acceded to. On 12.04.2005, the petitioner issued a Notice through its Advocate calling upon the respondent to arbitrate the dispute with respect to waiver of liquidated damages/penalty of Rs.1,81,000/-, or for this purpose, appoint an independent Arbitrator within 30 days from the date of receipt of the Notice. The said Notice was replied to vide communication dated 20.05.2005 by the learned advocate of the respondent whereunder it was stated that the request for waiver of compensation or appointment of Arbitrator being not in accordance with the terms of the Contract could not be entertained.

(3.) The petition has, thereafter, been filed seeking appointment of Arbitrator which has been opposed to by the respondent.