UNION OF INDIA Vs. RAMAKRISHNA CONSTRUCTIONS

JUDGEMENT

(1.) BOTH Misc. Appeal No. 971 of 1999 and Civil Revision No. 401 of 1999 are directed against the judgment dated 29.7.1999 and decree dated 13.8.1999 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Title Suit No. 25 of 1996, a proceeding under Section 20 of the Arbitration Act, 1940 (for short, 'the Act) filed by the respondent/opposite party no.1 -plaintiff against the appellants/petitioners -defendants. Misc. Appeal No. 971 of 1999 filed under Section 39(1)(iv) of the Act is directed against that part of the impugned judgment by which defendants were directed to file the original agreement entered into between the parties and Civil Revision No. 401 of 1999 is directed against that part of the impugned judgment by which Arbitrator for adjudication of the dispute between the parties was appointed. Respondent no.2 was impleaded in the appeal and the revision at the instance of appellants/petitioners on the ground that during pendency of the appeal and revision, assets and liabilities of the plaintiffs partnership firm have been vested with it.

(2.) PLAINTIFF is a contractor. Defendants accepted plaintiffs tender for execution of earth work and issued work order dated 15/21.10.1992. As per the work order the work was to be completed by 20.4.1994. Accordingly, the parties entered into an agreement dated 17.3.1999. In the first variation statement agreement value was enhanced to enable the plaintiff to execute extra work and accordingly a supplementary agreement dated 14.2.1994 was executed.

(3.) PLAINTIFFS case is that immediately on receipt of the work order plaintiff deployed men, materials and machineries but due to hindrances and impediments arising out of inaction on the part of the defendants, the work could not be started till 24.12.1992. However, plaintiff substantially completed work by the stipulated date of completion. By letter dated 15.4.1994(Ext.1) the plaintiff requested the defendants for extension of time for completion of small quantity or incomplete work. However, defendants did not respond as a result of which, machineries and equipments such as, dozers, excavators, tippers, rollers, etc. deployed by the plaintiff remained idle on the spot causing heavy loss on account of hire charges. In such circumstances, plaintiff had to demobilize with effect from 15.6.1994 as the monsoon set in keeping the defendants informed regarding the developments. In all, the plaintiff avers to have sustained loss to the tune of Rs.55.00 lakhs on this account. It is also averred that the plaintiff has not been paid for the work done as per the specification. It is averred by the plaintiff that he is entitled to claims as per the schedule to the plaintiff as such claims are not "excepted matters" in terms of Clause 63 of the GCC. In the 14th Bill the defendants were satisfied regarding value of the work executed by the plaintiff to be Rs.204 lakhs as against contractual amount of Rs.190 lakhs after excluding the miscellaneous items which were not operated by the Railway. The Defendants were also satisfied with the extra work executed by the plaintiff according to the estimate.In the 15th R.A. Bill endorsement was made on behalf of the defendants that payments due to the plaintiff have not been made. As all the claims made by the plaintiff cannot be said to be "excepted matters", and the defendants having illegally terminated the contract without intimation to the plaintiff, plaintiff avers to have sent letters dated 6.3.1995 (Ext.9), 21.4.1995(Ext.10) and 31.10.1995(Ext.11) putting forth his claims. Defendants did not respond to plaintiffs demand and tried to encash plaintiffs bank guarantee of Rs.5,93,503/ -. Finally,as the defendants failed to refer the dispute raised by the plaintiff to appoint Arbitrator as requested under Ext.11, Plaintiff filed the application under Section 20 of the Act.