OMAXE LIMITED Vs. NHPC LIMITED AND OTHERS

JUDGEMENT

(1.) Through this common order, this court shall decide above captioned three appeals bearing FAO No.2702 of 2013, FAO No.2703 of 2013 and FAO No.9396 of 2014 titled as "M/s Omaxe Limited vs. M/s NHPC Limited & others" as questions of law in all the above-mentioned appeals is similar. For brevity, facts are being taken from FAO No.2702 of 2013.

(2.) The instant appeal has been directed against the order dated 17.04.2013 passed by the Addl. District Judge, Faridabad whereby the objections filed by respondent No.1-NHPC under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') has been allowed and the award passed by the arbitrator has been set aside, while also remanding the matter to the Engineer-in-Charge.

(3.) In brief, the facts of the case are, that the appellant and respondent No.1 entered into a contract/agreement dated 20.02.2004 for construction of Multistoried Residential Building of Type 'A' Quarters (Package-II) at NHPC Residential Complex, Faridabad. A total sum of ' 11,72,49,846/- was awarded for the work. The date of commencement of work was 11.02.2004 and the stipulated date of completion was 10.03.2006 i.e. within 25 months. It is averred that on account of delay on the part of respondent No.1, the work was actually completed on 06.07.2006 i.e. there was delay of 118 days in completion of the project from the stipulated date of completion. It is submitted that as certain disputes arose between the parties, the appellant vide letter dated 01.05.2008 called upon respondent No.1 to appoint an Arbitral Tribunal. On the appointment of the Arbitral Tribunal the appellant filed its statement of claim which was contested. and thereafter an award was passed on 29.10.2010. During the proceedings before the Arbitral Tribunal, an application under Section 16 of the Act was filed by respondent No.1 contending that as per provisions of Clause 53 read with Clause 55.1 of General Conditions of Contract, the decision taken under clauses 7, 8, 10, 13, 17, 18, 21, 23, 24, 29, 32, 33, 34, 37, 38, 39, 40, 41 and 44 by the Engineer-in-Charge of respondent No.1 was final and binding on the appellant, and therefore, the Arbitral Tribunal has no jurisdiction to entertain of claims falling under theses clauses. The Arbitral Tribunal after going through the clauses of the agreement and hearing the parties, came to hold that since Clause 53 of General Conditions of Contract provides that the Engineer In Chief is to give his decision in writing and as this was not done, the Tribunal has to decide on the claims raised, after hearing both the parties. The Arbitral Tribunal, after going through the material placed on record, passed a detailed and reasoned award on 29.10.2010 allowing part of the claims of the appellant-contractor. Being aggrieved by the said award, respondent No.1 filed objections under Section 34 of the Act before the District Judge, Faridabad. The appellant filed a detailed reply to the objections filed by respondent No.1. The objections filed by respondent No.1 were disposed of by an order dated 17.04.2013 and the award dated 29.10.2010 was set aside holding that the Arbitral Tribunal exceeded its jurisdiction in deciding the claim of the appellant. The Additional District Judge further directed the parties to appear before the Engineer-in-Charge, NHPC, NHPC Office Complex, Sector 33 Faridabad on 17.05.2013 for adjudication upon the disputes raised in the arbitration petition filed by the appellant and to dispose of the claim within 45 days of 17.05.2013. Being aggrieved against the order dated 17.04.2013 passed by the Additional District Judge, Faridabad, the instant appeal has been filed.