- (1.)As common questions of law and facts are involved in all these appeals filed by the State Government under Section 37 of the Arbitration and Conciliation Act, 1996, they are being disposed off by this common order.
(2.)Respondent M/s. Tirupati Buildcon Pvt. Ltd., was granted a contract for the purpose of widening of two lane roads strengthening over various portions of National Highway No.78 on the basis of an agreement entered into between the parties. The agreement in question contemplated a provision for its completion within 12/14 months and it is an admitted position that in Arbitration Appeal Nos.42/2014 and 43/2014, the work was not completed within the stipulated period and therefore, after due approval from the competent authority, extension of time was granted. In Arbitration Appeal No.44/2014 also, the work could not be completed within 12 months. It was completed within a period of 17 months and 27 days and in this case also, approval was granted. For the work done during he extended period, the contractor claimed escalation in the cost price for execution of the work and when the same was rejected by the Departmentally Adjudicating Authority in accordance with the arbitration clause, the matter was referred for arbitration to the sole arbitrator namely one Shri A.L.Kori, a retired Chief Engineer, Public Works Department, M.P. The arbitrator having awarded the escalation cost beyond the period of 12 months in each of the case in question, these appeals have been filed by the State Government and the only question raised in these appeals is that once Clause 13.4 of the agreement which contemplated the provision for grant of escalation cost, in case, the contract is not concluded within the period of 12 months was deleted from the original contract, the arbitrator and the trial Court could not have awarded escalation cost.
(3.)Shri Sanjay Dwivedi invited our attention to the agreement in each of the case, Clause 13.4. thereof and argued that clause 13.4 in two parts reads as under:
13.4 The rates and prices quoted by the bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment on any account (For contract up to 12 months period)

OR

13.4 The rates and prices quoted by the bidder are subject to adjustment during the performance of the contract in accordance with the provisions of Clause 47 of the Conditions of Contract (For contracts more than 12 months period).

He submits that the second portion of Clause 13.4 which contemplates a provision for escalation in accordance with the formula contemplated in Clause 47 was deleted in the contract in question and after deletion of the same, the Executive Engineer issued a corrigendum vide Annexure A/2 and indicated that this is an error and therefore, it was said to have been incorporated by this corrigendum. Shri Sanjay Dwivedi argued that once the agreement was executed by deleting the second part of Clause 13.4 unilaterally by a corrigendum the Executive Engineer could not incorporate such a provision into the contract and therefore, an error has occurred in reading this part of the contract both by the arbitrator and by the trial Court, therefore these appeals should be allowed. Shri Sanjay Dwivedi further refers to Clause 47 of the Conditions of the Contract and submitted that this Clause contemplates a provision i.e. formula for calculating the escalation clause. Once the provision of escalation as has been incorporated in Clause 13.4 was not part of the agreement as it was deleted. It is said that an error has occurred in granting the benefit to the respondent contractor.