KAMARAJAR PORT LIMITED Vs. AFCONS INFRASTRUCTURE LIMITED

JUDGEMENT

(1.) The majority of the members of the Arbitral Tribunal Awarded 75% of the expenditure incurred by the Claimant, for doing temporary piling for timely commencement of the main work, to be paid to the claimant as recommended by the Dispute Review Board, besides interest at the rate of 12% per annum from 05.12.2001. Challenging the same, the present petition has been filed.

(2.) A Contract was allotted for re-enforcement of the construction of 550 m long piled wharf and three berthing jetties. Besides certification issued by the Engineers, the claim has been negatived. Subsequently the claim has been referred to the Arbitral Tribunal. The claim has been preferred not only on the ground that the extra works was done due to change in sequence of work and additional temporary work necessitated due to adverse physical conditions at site caused by erosion of shore and flow through hot water channel. It is not in dispute that the matter has been referred to the Dispute Review Board as per the agreement between the parties. Though the Dispute Review Board not constituted at the time of commencement of the Contract, the fact remains that the Dispute Review Board has been constituted subsequently and the experts in the field formed the Dispute Review Board. They visited the place of work and they accepted the additional work done by the claimant and recommended 75% of the actual expenditure incurred by the Claimant for the temporary work of piling. The majority members of the Arbitral Tribunal after analysing the factual aspects, found that the work was necessitated and the claimant is entitled to claim for the additional work and the delay was on the part of the respondent and accepted the recommendations of the Dispute Review Board and the majority members of the Arbitral Tribunal passed an Award for 75% of the expenditure incurred by the claimant.

(3.) The claim was resisted by the respondent mainly on the ground that the claim for payment of laps and chairs/supports is contrary to contractual conditions and the work is only temporary in nature and the claimant is not entitled to claim for any additional work. The contractual terms do not permit the petitioner to claim for any extra work. Similarly, the Engineers have rejected the claim mainly on the terms of the contract. It is his further contention that as per Clause 12.1 of General Condition of the Contract, the Claimant is deemed to have based the tender on its own inspection and examination of all the relevant factors.