NEW ASIAN CONSTRUCTION COMPANY Vs. UJVN LIMITED
LAWS(UTN)-2012-12-26
HIGH COURT OF UTTARAKHAND
Decided on December 19,2012

New Asian Construction Company Appellant
VERSUS
Ujvn Limited Respondents

JUDGEMENT

- (1.) WITH the consent of both the parties, this appeal was heard to be disposed of finally at the admission stage.
(2.) THIS appeal is directed against the order dated 14-9-2011 passed by the District Judge Dehradun in Arbitration Case No. 53 of 2011, filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the Act), whereby the petition under Section 9 of the Act moved by the appellant-contractor was partly allowed with reference to the forfeiture of the amount due under the bills raised against the work done by the appellant and lying with the respondents and the respondents were directed not to forfeit any such amount during the continuance of the contract and during the arbitral proceedings till award is passed by the said Tribunal. For rest of the reliefs with reference to invocation of bank guarantee and repudiation of the contract, the petition was rejected. Briefly stated the facts giving rise to the present appeal are that tenders were invited by respondent No.1- UJVN Limited for installation of complete civil works for 2x4.5 MV Kaldigad SHP, located at village Sangam Chatti, Taluka Bhatwari, district Uttarkashi and the bid of the appellant contractor was accepted for Rs. 35.83 crores and in pursuance thereof, a contract dated 24-12-2008 was entered into between the parties. It was agreed that the work under the contract shall be executed and completed by the contractor within a period of 24 months from the effective date of contract, i.e. 23-2-2009 and according to the schedule, the date of completion of the project was 22-2-2011.
(3.) ACCORDING to the appellant, on payment of advance, the appellant-contractor started sending the machinery to the site, but the machinery could not reach even village Sangam Chatti as there was no approach road beyond Sangam Chatti and that forest road could not be utilized as the Forest Department did not agree to it. Even otherwise, the said road was in a highly dilapidated condition. The appellant brought this fact to the notice of the respondent No. 1 and requested to make available approach road as contained in the contract. The respondent No. 1 did not pay any heed and neglected to make available this basic requirement with the result the appellant was compelled to devise its own means to meet out the problem. Under the contract, the respondent No. 1 was under obligation to provide requisite land and approach road for execution of work under the contract, as mentioned in Clause 10 of the contract containing Employer's Responsibilities. The appellant-contractor has also alleged that under Clause 25.1.2 of the Special Conditions of the Contract, it was incumbent upon the respondent No. 1 to provide land (for construction of approach roads), and forest and environmental clearance as are necessary for execution of the project, but the respondent No.1 failed to provide the approach road and also failed to obtain necessary clearances in that respect, particularly when the project itself is located inside a reserve forest. The availability of approach roads and other infrastructures were to be necessarily got executed by the Forest Department only subject to payment of expenses to be borne by the respondent No.1. As per scheme of contract, the appellant was required to submit a work programme, delineating the scope of work proposed to be accomplished by him along with specific time schedule for achievement of the same and accordingly the appellant planned out the execution of total project work in a span of 24 months from the effective date of contract. The appellant was required to prepare detailed design drawings for all the project facilities based on the preliminary drawings provided by the respondent No. 1 and to be submitted to the respondents for approval before taking up the execution work. The appellant performed his part of contract in this regard, but the respondents engaged the services of some third agency to get the needful. This conduct of the respondents caused further delay in approval of the detailed design drawings and thereby led to delay in execution of the facilities and burden of escalated costs and expenses upon the appellant. The appellant made request by sending letters dated 25-11-2009 and 17-12-2009 to the respondents but to no avail.;


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