PATTANAIK - (1.) THIS appeal is directed against the Judgment of the Allahabad High Court dated 16/12/1993 in First Appeal From order No. 930 of 1991, arising out of an arbitration proceeding.
(2.) THE respondent - contractor had entered into an agreement with the appellant for construction of non overflow and overflow sections with bridge spillway and other appurtenant works of Maudahe Dam in Hamirpur district in the State of Uttar Pradesh. THE agreement was entered into on 26/08/1985 and work commenced from 1/09/1985. THE period stipulated for completion of the works was 42 months. In the year 1987 in respect of two items of work namely Items 13 and 15, it is alleged that the appellant changed the designs and drawings as a result of which the quantity of work became abnormally high compared to the estimated quantity of work in the agreement. On account of such abnormal increase of the quantity of work the contractor claimed higher rate than what was agreed to in the agreement. THE State having refused to acceded to the contractor's demand and disputes having arisen between the parties, the arbitration clause of the agreement was invoked and dispute was referred to the sole arbitration of the Joint Secretary and Joint Legal Remembrance to the Government of Uttar Pradesh. Before the arbitrator the respondent - contractor made a claim of Rs.91,56,750.00 for the increased quantity of work in respect of Item No. 13 executed till 30-4-90 and Rs. 9,92,402.50 for the increased quantity of work in respect of Item No. 15 executed till 30-4-90 together with interest @ 10 Per Cent thereon. THE entire basis of the claim of the contractor was that in respect of the quantity of work in excess of the estimated quantity in the agreement he is entitled to be paid @ Rs.453.50 per cubic meter in place of agreed rate of Rs. 243.00 for Item No. 13 and the rate of Rs. 739.55 per cubic meter in place of agreed rate of Rs. 460.00 for Item No. 15. It was alleged in the claim petition that the State of Uttar Pradesh had paid and is paying the agreed rate of Rs. 243.00 per cubic meter in respect of the additional quantity of work in Item No. 13 and similarly has paid and is paying @ 460.00 per cubic meter even in respect of the additional quantity of work in respect of Item No. 15. According to the respondent contractor, on account of substantial change in designs and drawings there has been abnormal increase in the quantities of work compared to the estimated quantity of work in the original agreement and in respect of such additional quantity of work he is not bound to be paid at the agreed rate but at an enhanced rate on the basis of the analysis of rate submitted by him. It was further averred that when the drawings and designs were changed, the contractor had resisted and prayed for the alteration in the rate but the concerned authorities had assured him orally for such change though ultimately did not agree to the same. It was also averred in the claim petition that under the agreement he was bound to carry out the work as per directions of the concerned authorities and accordingly he has carried out the same. The appellant, State filed written statement before the arbitrator denying its liability to pay at the revised rate as claimed by the contractor. It was admitted that there has been a change in the drawings and designs relating to Items Nos. 13 and 15 and on account of such change, the quantity of work in respect of the aforesaid two items has increased. But the claimant is not entitled to any enhanced rate, in view of the different clauses of the agreement itself. It was also averred in the written statement that the so called variation in quantity of work is covered by clauses 11.25 and 13.11 of the agreement and therefore the contractor is not entitled to any higher rate.
(3.) THE learned arbitrator after analysing different clauses of the agreement, came to the conclusion that the contractor could not have refused the work in accordance with the alterations and modification in the drawings and designs. He further held that there has been a fundamental change in the drawings and designs which abnormally increased the quantum of work than the estimated quantum indicated in the agreement and under the agreement though the contractor cannot claim any excess rate for work up to the excess of 10 Per Cent , but beyond the same the contractor would be entitled to claim a higher rate. THE arbitrator accepted the analysis of rate given by the contractor and accordingly in respect of the quantity of work executed after the date of the completion of the work indicated in the agreement namely 28-2-1989, he granted as per the rate claimed by the contractor. In all he awarded a total sum of Rs. 90,21,765.65 together with interest @ 9 Per Cent per annum from 21-5-90 till the date of the award and further interest @ 6 Per Cent per annum from the date of the award till the payment or till the decree, if any, passed on the basis of the order. THE arbitrator also held that in respect of works executed after 30/04/1990 the claimant would be paid at the same rate i. e. Rs. 453.50 per cubic meter in respect of Item No. 13 and Rs. 739.55 per cubic meter in respect of Item No. 15 after adjusting the payments already made as per the rates given in the contract.;