STATE OF WEST BENGAL Vs. AFCON INFRASTRUCTURE LTD

JUDGEMENT

(1.) THIS is an application filed under Section 34 of the 1996 Act, for setting aside the award and the corrected award dated 30th September, 2004 passed by the Arbitral Tribunal.

(2.) PETITIONERS Case 2.1 The case of the petitioner is that the agreement between the parties contemplated widening of Panagarh Mourigram Road. The said work was divided into four sections and the works in respect of the said agreement related to the Rampurhat and Mourigram section and was numbered as S-11. Such works was to be completed within 42 months but in fact, was completed in 83 months after grant of five extensions. No claims were made during the subsistence of the agreement instead claims have been made after the works have been completed. The claims made are contrary to Clause 53 of the Conditions of Contract, which lays down the procedure for making claims. Under Clause 53.1, notice of claim for additional payment ought to have been made within 28 days from the event which gives rise to such claim. Notice should have been given to the engineer and employer. Similarly there has been non-compliance with Clause 53.4 of the conditions of contract which postulates verification of contemporary records. As no claim has been made within the specified time, the same is voidable under Section 55 of the Contract Act. The claim being contrary to the procedure laid down could not have been entertained and was liable to be rejected as has been held in --

(3.) COUNSEL for the claimant-respondent submits that the calculation was replaced at the direction of the tribunal and attached to the Claimants Note. The cost of borrowed capital was considered in (2006) 11 SCC 181. The Written Notes of the State has been relied on by the arbitrators and on basis thereof the award passed. Therefore the case of the petitioner was considered and reasons given for passing the award. As the award is a speaking award the same be not set aside.