UNION OF INDIA Vs. ANUP AND COMPANY

JUDGEMENT

(1.) Union of India represented through its General Manager of the South Eastern Railway has challenged the judgment dtd. 24/3/2021 passed in Arbitration No. 14 of 2019 by which its challenge to the Award dtd. 7/6/2019 was rejected.

(2.) On 19/9/2011 the South Eastern Railway invited bids for Foot Overbridge at Tata Nagar Station and strengthening of the existing redundant old ROB including construction of PF Ramp and other allied works for conversion of ROB into 2nd FOB at Tata Nagar Station, and M/s Anup & Company (hereinafter referred to as claimant) was awarded the subject-works through Letter of Acceptance dtd. 14/9/2011. The total value of the aforesaid subject-works was Rs.1,65,35,610.00 and the period of completion of the subject-works was to end on 13/5/2012. According to the appellant, the work progress was not as per the time schedule and the claimant was granted extension of time for 5 months starting from 29/4/2013 till 30/9/2013 without penalty and, in relation thereto, a supplementary agreement was executed on 20/5/2013. Still, there was no substantial progress in work and a 7-day notice was issued to the claimant on 19/12/2013 for gearing up the resources and appreciable progress. Soon thereafter, another notice dtd. 8/1/2014 under clause 62 of the General Conditions of Contract (in short, GCC) was issued to the claimant giving 48-hour notice to commence work/ to make progress in work. Now challenging the notice dtd. 8/1/2014 the claimant moved the High Court of Jharkhand in WP(C) No. 237 of 2014 but, in the meantime, the contract was terminated on 16/1/2014 under clause 62 of GCC and the claimant was directed to attend the office of SSE/Works/West/TATA within 7 days for final measurement. The claimant therefore filed an amendment petition in the pending writ petition to challenge the termination order dtd. 16/1/2014. On 26/8/2015 the writ petition was dismissed as withdrawn with liberty to the claimant to invoke arbitration clause and, pursuant to the aforesaid liberty, the claimant sent legal notice dtd. 31/7/2017 to Sr. Divisional Engineer (East) of South Eastern Railway at Chakradharpur for appointment of an Arbitrator. The claimant issued 2nd legal notice on 4/12/2017 for appointment of the Arbitrator but the South Eastern Railway did not respond to the aforesaid notices.

(3.) Aggrieved thereby, the claimant approached Calcutta High Court by filing AP No. 503 of 2018 under Sec. 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator which was disposed of by an order dtd. 3/10/2018. In the said order it has been indicated that; while deciding each of the claims raised by the claimant the Arbitrator shall first decide whether such claim is dependent on validity of the termination of contract and the same is barred by limitation or not. Following the order passed by Calcutta High Court, a former Chairman of the Railway Board was appointed as the Sole Arbitrator by the General Manager of South Eastern Railway vide letter dtd. 27/11/2018 to adjudicate and arbitrate the disputes and claims/counter-claims relating to the subject-contract with a stipulation that the Sole Arbitrator shall publish the Award in accordance with Arbitration and Conciliation Act, 1996 and Arbitration and Conciliation (Amendment) Act, 2015, except the matters which fall under the category of "Excepted Matters". The Arbitrator entered upon the reference and after filing of the statement of claim/statement of defence/rejoinder conducted oral hearings on 13th and 28/5/2019 at Ranchi.