CHENAB CONSTRUCTION JOINT VENTURE Vs. UNION OF INDIA

JUDGEMENT

(1.) M/s. Chenab Construction Joint Venture who has filed the present petition is engaged in carrying on work of civil engineering. They have been working for the Indian Railways for the last 24 years and claims to have unblemished record. The petitioner-firm was allotted construction work on 08.02.1996 which was worth Rs. 14,88,35,000/-. In that regard a contract agreement No. 74-W/8/144/WA/Pt. 1 was executed on 17.02.1996 between the parties (Annexure-B). As per the stipulation in the contract agreement the work was to be executed in accordance with the General Conditions of Contract 1989 which forms part and parcel of the agreement. The claim of the petitioner is that those conditions for settlement of dispute by way of arbitration would also be available. Hence this petition. The petitioner claims that the work was finally completed satisfactorily and a completion certificate was recorded in the Measurement Book by the officials of the respondents Railways. However, while preparing the final bills the claims made by the petitioner firm were not minutely considered and the payments were not made to the petitioner. The petitioner-firm has however, conceded that during the course of execution of the work the respondents went on forcing it to receive the payment as and when it was released without protest and, therefore, there was no option except to abide by the instructions of the respondents. Eventually vide letter dated 15.05.2006 the petitioner-firm addressed a letter to the General Manager/Engineering, Northern Railways Baroda House, New Delhi with a request to refer 31 issues of dispute to an Arbitral Tribunal as contemplated by Clause 64 of the General Conditions of Contract. On 10.11.2006 the respondents sent a communication rejecting the claim made by the petitioner-firm (Annexure-D). The petitioner then responded vide letter No. CCJV/07/30 dated 25.06.2007 and raised additional claims (Annexure-E).

(2.) The respondents vide communication No. 74-W/8/144/WA/Arb dated 05.12.2007 made a reference partially accepting the demand raised by the petitioner. The respondents excluded certain items and no reference was made in that regard claiming they are excluded items. In respect of other items the respondents appointed Shri R.K. Sarkar, C.E/HQ Northern Railways, Baroda House, and Shri Devender Rai, FA&CAO/Traffic, Northern Railways, Baroda House, New Delhi as arbitrators with a request to them to nominate the presiding arbitrator (Annexure-F).

(3.) The petitioner filed a protest petition against excluded items and for not referring the claims vide letter dated 18.12.2007 with a request to make reference of the left out claims to the arbitration for adjudication. The petitioner claimed that the claim was made by them in respect of 42 items which include item of interest for an amount of Rs. 1105.85 lacs plus interest and P.V.C. as per actual. However, the items referred to arbitration for adjudication are 25 in number which are for an amount of Rs. 498.48 lacs only. The items which were left out from the list have been given in the letter dated 18.12.2007, which are as under:-