NHPC LIMITED Vs. JAI PARKASH ASSOCIATES LTD

JUDGEMENT

(1.) THIS is an appeal against the order dated 24.12.2010 passed by the learned Additional District Judge, Faridabad dismissing the appellant's objection petition under Section 34 of the Arbitration and Conciliation Act, 1996 (in short "the Act"). The disputes and differences which had arisen between the parties were arbitrated by an arbitral tribunal consisting of a Presiding Arbitrator and two Arbitrators, one of whom was Justice Hari Sarup (retired). An exhaustive award was made on 10th May, 2008. Several claims have been allowed in favour of the respondent. Pre -arbitration and pendente lite interest @ 12% has been awarded on the claims allowed by the arbitral tribunal. Future interest has been ordered @ 18% in accordance with Section 31 Sub Section (7) Clause (6) of the Act for the post -award period.

(2.) THE rub in the execution of the works centres around use of concrete and shotcrete in the civil works which are differently priced in the market. The respondents, on instructions of the site engineer, had used shotcrete, the more expensive of the two, to re -enforce certain parts of the structure for which higher claim was made by the contractor for which no rate was specified in the general conditions of contract. The argument before this Court has centered around the interpretation of Clauses 5.15.2 and 9.17.3 of the conditions of contract. Clause 9.17.13 (2) and (4) reads as under : -

(3.) THERE is no dispute that 'Schedule -B' mentioned in Clause 9.17.13 is neither signed by the parties nor is in existence. Mr.Sinhal learned counsel appearing for the appellant is not in a position to dispute on the material placed in the paper book that the extra item of work in using shotcrete were done under the directions of the employer acting through its engineer given on the spot to the contractor. If the extra work was done under the directions of the employer, I see no reason why the contractor would not be entitled to payments for extra shotcrete used in the structure. It is also not disputed that shotcrete was material mentioned in Annexure -1 which the Corporation had agreed to issue to the contractor for use in the work under the contract in terms of clause 93.4. There can be no doubt that clause 93 postulates that the contractor shall procure/arrange all construction materials excluding cement, steel and explosives including transportation arrangement and their storage at site. The cement, steel and explosives will be provided by the appellant NHPC at its store mentioned in data sheet which is to be transported to work site by the contractor from the NHPC store to carry out construction work.