UNION OF INDIA Vs. B.B. SENAPATI

JUDGEMENT

(1.) The Appellant, by filing this Appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 (for short 'the A&C Act' 1996), has called in question the order dtd. 18/10/2019 passed by the learned District Judge, Cuttack in ARBP No.87 of 2013. The Respondent as the Petitioner had filed the above numbered application under Sec. -34 of the A & C Act, 1996 for setting aside the award dtd. 1/2/2013 passed by the Arbitral Tribunal constituted as per the Contract Agreement No.32/CE/C/HQ/BBS/SER/2000 dtd. 5/5/2000 executed between the Respondent (Petitioner therein) and the Appellant (Opposite Party therein).

(2.) Brief facts leading to the instant Appeal are as follows:- The Appellant had taken up the project work relating to execution of the earthwork, minor bridges and other allied work in Sector-V between Km. 481.694 to Km. 484.160 in connection with Rahama-Paradeep Patch doubling of Cuttack-Paradeep Sec. in Khurda Road Division of South Eastern Railway having inviting open/limited tenders for the purpose, the Appellant after negotiation. Pursuant to the acceptance of the tender, the agreement came into being which contained the arbitration clause. The period of completion of work was fifteen (15) months from the date of acceptance of the letter, i.e., 2/3/2001. According to the Respondent, he was given to understand that the site where he was to work was free from all obstructions. It is also said that it was the obligation of both sides to discharge their obligations without causing any delay for completion of the work within the agreed time period. The Respondent's case is that he was always sincering to complete the work within the time frame by mobilizing sufficient number of man and machineries and collecting the required materials for the purpose. However despite all these above being in readiness the work could not be completed in time due to various other intervening factors, mainly due to devastation on account of Super Cyclone. After the Super Cyclone, there was abnormal rise in the diesel rate as also other materials. The Respondent despite all these started the work with all promptness. But he was not provided with work site free from all obstructions as agreed for which he was compelled to make alternative arrangements by constructing an approach road crossing the railway lines after writing to the Appellant on 7/10/2000 with the knowledge and supervision of the Appellant. Major part of the work was completed by end of June, 2000. However, rest work could not progress due to monsoon followed by heavy rain coming to intervene. So, as per the decision taken in the Progress Review Meeting, the time period to complete the rest of work was extended by further period. Be that as it may to the misfortune of the Appellant, the execution of the rest of work was seriously hampered due to the miscreants creating mischievous activity. The Appellant in this matter totally remained silent and unmoved on being requested by the Respondent to intervene. The Appellant, on the other hand, on 6/11/2000 wrote a letter as to the inaction of the Respondent in completing the work since July, 2000 and then threat was given for termination of the contract. On 28/11/2000 when another notice was served by the Appellant upon the Respondent, the Respondent had given the reply on 0712.2000 explaining all these situation standing as impediment on the way of completion of work. Despite that the Appellant issued notice of termination of contract. The period of completing of work although was extended after negotiation, the same could not be finished for the reason beyond the care and control of the Respondent and it is said that the Appellant without looking those in their proper prospective have abruptly gone for termination of the contract.

(3.) The Respondent having thus suffered loss demanded the payment of the same from the Appellant. The Appellant instead of settling the dispute raised a counter demand in asserting that the termination of the agreement at the end was just and proper. The Respondent finally advanced the claims as under:- <IMG>JUDGEMENT_92_LAWS(ORI)1_2024_1.jpg</IMG>