K.J.Sengupta, J. - (1.) THE above appeal has been preferred against the judgment and order dated 6th January, 2011 passed by the learned Single Judge of this Court by which challenge to the award of the learned Arbitral Tribunal dated 30th September, 2004 as corrected on 28th October, 2004 has been rejected.
(2.) THE short fact leading to taking action by the appellant before learned Trial Judge to challenge the award passed by the learned Arbitrators and its preferring the instant appeal is shortly put hereunder: THE respondent-claimant through an International Competitive Bidding secured the contract awarded by the appellant for execution of works of improvement of a portion of Panagarh - Moregram Road in West Bengal, viz. between Rampurhat - Moregram section 115 Km. to 150.048 Km. being contract package S-11. THE contract was awarded by letter of acceptance to the respondent, dated 30th of June, 1998 for the above job for a sum of Indian Rs.42,52,71,825/-. THE original claimant and contractor was Asia Foundations and Construction Limited now it is known as AFCONS Infrastructure Limited (the present claimant-respondent). THE works order was issued on 25th January, 1993, stipulating date of commencement of works on 29th January, 1993 and on 28th July, 1996 for completion. For various reasons the said works could not be completed within the time and as such on five occasions extension for completion of period of contract was granted. There is no dispute with regard to the bill for the works done. Thereafter, the claimant-respondent put forward claim on account of delay for construction of works and such claim was put forward on 8th January, 2000 though the contract was completed by 31st of December, 1999. The claimant made the following claims under various heads on account of the delay in completion of construction works. (a) Overhead expenses Rs. 58,499,036.00/- (b) Equipment charges Rs. 52,547,747.00/- (c) Additional POL expenses Rs. 7,413,980.00/- (d) Additional financing costs Rs. 4,074,306.00/- (e) Loss of opportunity cost Rs. 43,467,011.00/- (f) Additional expenses on labour Rs. 39,192,261.00./- The claimant's claim is founded on the allegation that because of the respondent's failure for not performing their part of the contract on various aspect of the matter there has been delay in completion of the works and at their instance there has been extension of contractual period. We think that we need not elaborate each and every aspect of the matter minutely as it has been taken care of by the learned Arbitrators recording the fact accurately. Thus the aggregate claim on account of additional cost of damages to the extent of Rs.242,194,341 /- was made. The said claim was however rejected by the Projecting Director (Engineer) of the respondent by letter dated 22nd November, 2000 on the plea that the claims submitted by the claimant do not appear to be admissible under the provision of contract and the said officer through memo dated 24th November, 2000 requested the claimants to propose for constitution of Arbitral Tribunal in terms of Clause 67.3 of the General Condition of Contract making nomination of Arbitrator.
(3.) THE respondent-State filed counter statement making a counter claim. In the counter statement preliminary point as to maintainability and admissibility of the claim was raised alleging that the Contractor at no point of time submitted claim for additional payment in terms of Clause 53.1 of the Contract Volume 1. THE claim for additional payment first arose on 29th July, 1996 though the claim was made on 8th January, 2001. It was alleged that claims also do not fall within provision of the contract executed between the claimant and the respondent. Respondent further alleged in the counter statement that because of respondents' inability of performing terms of the said contract in various ways and manner there has been delay and such delay is attributable to the claimant-respondent. Rather appellant has suffered loss and damages because of delay, and such loss and damages were made out as and by way of counter claim on various heads as follows: (a) Overhead charges Rs. 7,54,89,177.00 (b) Non-entitlement of obtaining profit Rs. 6,40,28,724.00 (c) Loss of profit benefit Rs. 18,54,60,000.00 (d) Liquidated damages Rs. 37,25,339.00 (e) Price adjustment Rs. 9,09,91,735.00 The Arbitral Tribunal consisting of three members upon hearing the parties on several days and after considering all the documents passed the award in favour of the claimant-respondent as against claimed amounts on various heads as follows: (a) Claim No. 1: Overhead expenses Claimed amount: Rs. 5,48,52,881.00 Awarded amount: Rs. 5,29,10,000.00 (b) Claim No.2: Equipment charges Claimed amount: Rs. 5,25,47,747.00 Awarded amount: Rs. 26,83,325.00 (c) Claim No.3: Additional POL expenses Claimed amount: Rs. 71,49,192.00 Awarded amount: NIL (d) Claim No.4: Additional Financing Costs Claimed amount: Rs. 4,10,73,667.00 Awarded amount: Rs. 77,32,000 (e) Claim No.5: Loss of opportunity cost due to extension of period of contract Claimed amount: Rs. 4,34,67,011.00 Awarded amount: Rs. 1,08,00,000 (f) Claim No.6: Additional expenses on account of increase in cost of labour Claimed amount: Rs. 3,59,48,574.00 Awarded amount: NIL. ;