PRINCIPAL SECRETARY TO GOVT. Vs. JAGANNATH CHOUDHURY

JUDGEMENT

(1.) The State of Odisha, by filing this Appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 (for short 'the A&C Act' 1996), have assailed the judgment dtd. 11/4/2019 passed by the learned District Judge, Mayurbhanj at Baripada in ARB Case No.12 of 2015 in the matter of an application under Sec. 34 of the Act, refusing thereby to set aside the award dtd. 8/10/2014 passed by the learned Arbitrator in ARBP No.12 of 2008.

(2.) FACTUAL MATRIX OF THE CASE:-

(3.) The Appellant in their written statement raised the question of maintainability of the Arbitration Proceeding by referring to Clause-51 of the General Conditions of the Agreement in stating that the dispute, if any, could have been referred only to the Arbitral Tribunal consisting of three members as contemplated in the clause. It is also stated that since the Respondent-Claimant has not furnished security as per Clause-51 of the Agreement, the Arbitration Proceeding is not maintainable. It is stated that the Respondent-Claimant without complying Clause-50 could not have invoked the Arbitration Clause. On the merits of the claim petition, it is stated that even though the work was completed in time by the Contractor, no final bill was submitted and, therefore, payment could not be made to the Respondent-Claimant. It is further stated that excess payment has been made to the Respondent-Claimant regarding price escalation which was required to be adjusted from other dues payable to the Respondent-Claimant. Since the final bill and price escalation bill had not been submitted by the Respondent-Claimant, security deposit had not been refunded. The Appellant disputed the claim of the Respondent-Claimant towards price escalation bill and it is stated that after taking into account the amount already paid, balance amount of only Rs.38,89,191.00 towards price escalation has remained unpaid. The claim regarding idle hire charges has been resisted on the ground that Clause-49 of the General Conditions of the Contract does not provide for payment of any compensation. It is stated that at the time of extension of time in two phases applied for by the Respondent-Claimant, undertaking had been given by him that he would not claim any compensation of any account from the Department for the delay in completion of the work. It is also stated that as per Clause-7 and 16(g) of the General Condition of the Contract, it was the responsibility of the Respondent-Claimant to provide and install the required machinery at the work site. The interest as claimed is stated to be not payable in view of Clause-8 of the Special Conditions of the Contract. It is further stated that since the Respondent-Claimant himself was responsible for the delay as he had not submitted the final bill and the final price escalation bill, no interest is payable.