SIDDHARDHA CONSTRUCTIONS PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This Application has been moved under Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996, (henceforth referred to as 'the Act'), seeking intervention for appointment and constitution of the Arbitral Tribunal for resolving the disputes that are, said to have, arisen between the parties.

(2.) The Applicant Company responded to the tender notification floated by the respondent Railways on 29-07-2002 for the work relating to "supply and stacking of 50 mm gauge hard durable stone ballast". The tenders were opened on 04-09-2002 and the Applicant Company was awarded the work through a communication of acceptance of its tender on 31-10-2002, by the respondents. The Applicant Company was required to supply and stack 9900 cum of the hard ballast @ Rs. 492 per cubic metre and thus, the total value of the contract has been worked out to be Rs. 48,70,800/-. According to the Applicant Company it started undertaking the execution of the work of collecting the specified gauge of hard ballast stone, but however, could not unload or stack it for want of spaces to be allocated by the Railways. It is the case of the Applicant Company that the entire hard ballast material of 9900 cum is not required to be dumped or stacked at one place, but is required to be stacked at various locations, where the project work was going on. It was the case of the Applicant Company that the site, which has been required to be made available for such dumping has either not been physically available or even, if available, the said site is all filled with permanent way materials belonging to the Railways and thus, there was an actual constraint that has been brought about for the Applicant Company to stack the ballast procured by it. The Applicant Company has pointed out that in terms of the powers available under the "General Conditions of the Contract", subsidiary agreements have been executed extending the time for completion of the work on various dates; extending right up to 31-08-2006. During this process, the Applicant Company has been soliciting the revision of the rate, for, the costs of the procurement of the ballast have gone up, but however, the Railways have not agreed for the same. It is stated in Paragraph No. 5 of the present Application that the Applicant Company had executed the work for a value of Rs. 36,55,504/- and thus, supplied a quantity of 7429.88 7 cum. Hence, the Applicant solicited payment of the money for the work executed and when the final bill was prepared on 03-07-2007, the same was signed under protest. He has clearly recorded the expression "under protest" on the "no claim certificate in final bill" prepared by the Railway administration. According to the Applicant it has made a request on 21-01-2008 seeking the General Manager, South Central Railway, Secunderabad, in terms of Sub-sections (5) and (6) of Section 11 of the Act, to refer the claims/disputes for resolution to the Arbitral Tribunal. The Office of the General Manager, had acknowledged the receipt of the said notice on 22-01-2008, but since, there was no response from him by constituting the Arbitral Tribunal, it has moved the present Application on 17-06-2008 after serving an advance copy thereof on one of the Standing Counsel for the Indian Railways.

(3.) The Applicant has crystallized its disputes/claims numbering 10, as follows: Claim No. 1: ___________ Refund of Security Deposit Rs. 2,51,100-00 Claim No. 2: ___________ Loss of productivity and under utilization of the organization due to non-provision of the site for collection of ballast by the Railways, 10% of agreement value Rs. 4,87,080-00 Claim NQ-3: __________ Loss due to delay in receiving the payments due to delay in dumping, waiting for linking of track to be done by another agency Rs. 3,00,000-00 Claim No. 4: __________ Expenditure for making path ways repeatedly for collection of ballast Rs. 1,20,000-00 Claim No. 5: Idling of vehicles due to delay in showing the site for collection by Railways, for 24 months @ Rs. 1,20,000/month (2 tippers, 20 tons capacity @ Rs.60,000/- per month) Rs. 28,80,000-00 Claim No. 6: ____________ Idling of dumping labour due to delay in the linking of track by another contractor. 20 labour for a total period of 300 days @ Rs. 100/- per head per day. Rs. 6,00,000-00 Claim No. 7: ___________ Additional rate for the supplies made beyond the original currency of the contract for a quantity of 5811.8 cum @ Rs. 150/- per cum. Rs. 8,71,770-00 Claim No. 8: ___________ Loss due to continuation of overheads beyond the initial completion period (28-02-2003) from March 2003 up to 31 -08-2006 for site office and Head Office, as per Hudson's formula up to the date of termination.Rs.48,70,800 x 42/2 x 10% Rs. 51,14,340-00 Claim No. 9: ___________ Interest on all the above from September 2006 to the date of payment at 24% compounded. ...To be worked out. Claim No. 10: ____________ Cost of arbitration. ...To be worked out.