K.S. BABURAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) Both these Appeals are by the Contractors, who had entered into a Contract with the Railways for supply of 50 mm Stone Ballast. The Appellant in O.S.A. No.388 of 2011 had entered into a Contract with the Railways on 25/5/2005. The period of Contract was for 12 months ending on 24/5/2006. The Appellant in O.S.A. No.43 of 2012 had entered into a Contract for supply of 50,000 cubic meters of 50 mm Stone Ballast on 26/5/2005. The period of Contract was for 11 months and it expired on 25/4/2006. It is an admitted case of the parties that both the Appellants did not complete the entire supply within the Contract period and the Railways terminated the Contract on 11/1/2007 for non-performance.

(2.) Contending that the termination is illegal and that the Railways was responsible for the non-performance, since it had not provided the Yard and the required Wagons for transporting the Ballast from the Yard to the various locations, the Contractors sought for Arbitration. Since the Railways did not respond to the request for Arbitration, the Contractors had filed Original Petitions in O.P. Nos.581 & 584 of 2006 under Sec. 11 of the Arbitration and Conciliation Act for appointment of an Arbitrator. This Court by an Order, dtd. 24/3/2007 appointed a Retired Judge of this Court as the Arbitrator. The parties made various claims before the Arbitrator.

(3.) The Crux of the claim of the Contractors before the Arbitrator was that the delay in supplying the Ballast was due to the failure on the part of the Railways to provide the Yard and also the special BKH Wagons that are required for transporting the Ballast to various locations. The Contractors also claimed that they had incurred expenditure in mobilising a massive establishment for the purposes of the Contract by arranging the required machinery comprising of pay-loader, JCB earthmovers, etc. and also they had entered into differnet arrangements with the quarry owners and crushers for procuring the required Ballast. It was also their contention that apart from the failure on the part of the Railways the heavy monsoon that year also led to the delay in performance of the Contract.