BUILD FAB Vs. AIRPOT AUTHORITY OF INDIA

JUDGEMENT

(1.) Though the respondent is not represented even at the second call, it does not appear that the present request under section 11 of the Arbitration and Conciliation Act, 1996 is in order. The petitioner was awarded a contract which the petitioner claims to have executed successfully. The petitioner says that after the work was completed following the extension of the period of completion, the respondent purported to deduct a sum in excess of Rs. 31 lakh out of the security deposit furnished by the petitioning contractor to the employer.

(2.) Clause 25 of the general conditions governing the contract provides for the mechanism for resolution of disputes and arbitration. Such clause requires the contractor to lodge a claim within ninety days of receiving any intimation from the respondent that any bill is ready for payment or else the amount certified for payment would be treated as having been accepted. Though the clause does not apply strictly in the present context, what is relevant is that the clause requires the dispute to be raised by the contractor within ninety days of a bill being made ready for payment or of any claim being made by the respondent.

(3.) Following the liquidated damages being imposed unilaterally, the petitioner complained to the member (planning) of the respondent by a letter of February 10, 2011. It may also be accepted that such letter was received by the relevant official and it was made within ninety days of the imposition of liquidated damages. Clause 25(b) of the general conditions governing the contract recognises arbitration of only such disputes that are not resolved by the dispute resolution board set up under the agreement. The initial part of Clause 25 vests the authority to appoint such dispute resolution board in the member (planning) of the respondent. Clause 25(a) (ii) stipulates that if the contractor does not make any demand for the dispute resolution board being set up within ninety days of receiving an intimation of any claim from the employer, the contractor would be deemed to have waived the right to object to the claim. It is of significance that the dispute resolution board is required to be set up by the member (planning) of the respondent and the clause does not say that such official himself would be the single-member dispute resolution board.