PRADEEP SHARMA Vs. EXECUTIVE ENGINEER, SHILLAI

JUDGEMENT

(1.) The petitioner was awarded works, for construction, of, Kando Chittli Road KM 0/0 to 8/060 (SH:Formation cutting 5/7 mtr. Wide, X-Drainage work, R/Wall, Logo Sign Board, Passing Places etc., KM0/0 to 8/060) under package No. HP10-32. A period of 12 months was prescribed in the apposite contract, executed inter se the petitioner herein, and, the respondent herein, for completion, of, awarded works. However, before the awarded works could be completed by the petitioner, the contract was rescinded, on 10.07.2008. The rescission of the contract executed inter se the petitioner, and, the respondent, was a sequel of certain landowners, whereupon whose lands, the awarded work was to be executed, rather causing hindrance(s) , in the execution of the work, by the petitioner. Consequently, on anvil of the relevant clause 55.1, of, the contract executed inter se the petitioner, and, the respondent, provisions whereof stand extracted hereinafter, the respondent concluded, of, the performance of the contract being hence frustrated, whereupon, it was constrained, to, rescind it.

(2.) Uncontestedly, the apposite contract, contains an arbitration clause, and, on anvil thereon, the disputes with respect to, all, the claims raised by the petitioner herein against the respondent, where hence referred, for, their arbitration vis-a-vis the Arbitrator. The Arbitrator concerned, pronounced his award, wherein, he allowed the petitioner's claim, for monetary indemnification, arising, from his plant, machinery and equipments besides man power remaining idle, only, from, 8.2007 to 25.11.2007, whereas, he refused to allow indemnification in respects thereof, from 8.2007 to 10.07.2008 also the Arbitrator refused, to, in consonance with the rates, claimed, by the petitioner vis-a-vis the expenditure(s) incurred towards defrayment(s) of rent vis-a-vis machinery, equipments, and, manpower hence maintained at the relevant site, hence mete vis-a-vis him, conspicuously for the aforesaid claimed period, rather he proceeded, to, discard the rates claimed by the petitioner, and, he proceeded to make monetary indemnification, in respect of various claims, reared before him, by the petitioner in the manner, encapsulated in the award.

(3.) The petitioner is aggrieved, on both, the aforesaid counts. Initially, the justifiability of the petitioner, to seek monetary indemnification, under various heads, from the period commencing, from, 2.8.2007 to 10.07.2008 is to be set at rest. The Arbitrator had while restricting the apposite claim, espoused before him by the Contractor, had placed reliance upon communications addressed from 2.08.2007 to 15.11.2007. He also proceeded to place reliance, upon, Annexure P-3(Q) , (a) Annexure whereof, is a communication addressed, on 15.11.2007 by the Executive Engineer, Shillai, to the Assistant Engineer, Shilai, Sub Division, whereunder, an apposite information, was purveyed, to him, (b) also a proposal occurs, therein, for closure of works, being referred to the higher authorities, on account of hindrances being created, by certain landowners, whereupon whose lands, the awarded work, was to be executed by the contractor, (c) and, hence the Arbitrator proceeded to therefrom also hence draw an inference, of the contractor being throughout aware, of the imminent closure of the project, (d) besides his also throughout holding the requisite knowledge, of imminent frustration of the contract, hence, was enjoined, to, in contemporaneity thereof, remove his man power, machinery, plant and equipments etc., from the relevant site, (e) whereas, his waiting for rendition, of, an order of rescission of contract by the authorities concerned, rendering him, rather estopped to claim the apposite monetary indemnification, from, the respondent.