ENNORE PORT LIMITED Vs. SKANSKA CEMENTATION INDIA LIMITED

JUDGEMENT

(1.) ACCORDING to the petitioner, the award suf"fers from illegality and the arbitrators have ex"ceeded the parameters of the power and have committed misconduct and therefore, the award deserves to be set aside.

(2.) THE petitioner called for competent of"fers by open tender for construction of Port Site Access Roads and Bridges for the pro-posed Coal Port Project (Contract No. ECPP-C2). Trafalgar House Construction (In"dia) Ltd. submitted their offer. THE respondent is the successor in interest of Trafalgar House Construction India Ltd. Haskoning Royal Dutch Consulting Engineers and Architects of Netherlands were engaged as Project Consul"tant for planning, design and implementation of the project. THE petitioner is the successor in interest of Madras Port Trust. THEre was a for"mal agreement incorporating the letter of ac"ceptance, clarifications, specifications, terms and conditions and was executed on 28.6.1996. THE work was to be completed within 15 months from the date of commence"ment. THE date of commencement is 30.6.1996 and therefore, the due date for com"pletion would be 3.9.1997. THE work could not be completed within the stipulated period. An extension was granted till August 1998. THE project was completed only on December 1998. THE contract provides for issue of de"fects liability certificate by the Engineer, who is none other than the project consultant re"garding satisfactory completion. This certifi"cate was issued along with a covering letter dated 25.1.2000. According to the respon"dents, the delay was "due to various reasons not attributable to themselves" and since all outstanding works have been completed to the satisfaction of the Engineer, the respondents felt entitled to make certain claims arising out of differences in the interpretation of certain clauses of the contract and on account of the breach. A claim statement was submitted by the respondent on 9.5.2000. THE petitioner's 'contention that this is a final statement of claim is denied by the respondent. According to them, the notice under clause 67.1 was issued only on 7.1.2002. This was rejected on 5.6.2002. THE arbitration commenced. THE respondents filed their statement of defence and a written statement was filed where a supple"mentary claim was made by the petitioners. According to them, claim Nos. 1 and 9 are not arbitrable. Claim Nos. 7, 9 and 10 are not in"cluded in the final statement and therefore, lia"ble to be rejected. No oral evidence was ad"duced by either party and they relied mainly on documentary evidence. THE following claims were made:

(3.) ACCORDING to the learned counsel, the claim Nos. 1, 2, 3, 5, 6 and 9 are barred by Clause No. 67.5 and the Arbitrators cannot construe the clause so as to invest themselves with a power to deal with "excepted matters". The parameters of the Arbitrator's jurisdiction are fixed. The learned counsel submitted that as regards the claim Nos. 1, 2, and 9 they are hit by clause 67.1. The claimants cannot say that out of ignorance or inadvertence the persons in charge had referred to clause 67.1 and that it was only in 2002, notice under Clause 67.1 was given and thus try to free themselves from the time restraint imposed by the Agreement. The learned counsel submitted that when, the letters clearly indicates a reference to the Engi"neer for resolution of the dispute under clause 67.1 and when the Engineer has given his deci'sion immediately under Clause 67.1 by issu"ing another notice. Referring to the same clause again two years later would not make the dispute arbitrable. The learned counsel submitted that as regards claim Nos. 2, 3 and 4, the Engineers have certified a certain amount which the respondents objected to and raised a claim. The Arbitrators went into this question though it would be an excepted, matter but came to the conclusion that the decision of the Engineer cannot be interfered with. Therefore, the petitioners are bound to satisfy the claim under this head, not because the Arbitrator had jurisdiction to go into the matter, but because the Engineers have certified it to be correct. As regards claim No. 5, according to the learned counsel for the petitioner, the Engineers had rejected this claim and therefore, it would be an excepted matter but the Arbitrator had awarded a sum of Rs. 2,36,836/- against the claim of Rs. 3,36,836/- without any evidence against claim No. 6, this relates to the outlet channel at had to be constructed by the respon"dents. ACCORDING to the learned counsel, the claimants had agreed to receive lumpsum pay"ment; the claimants knew the channel had to be watertight; the claimants admitted that the Barrier I had been badly done.