- (1.) This appeal is directed against the judgment delivered by Sri D.C.Kar, Addl. District Judge (11th Court) Alipore, in Misc. Judicial case no. 24 of 2012 whereby and whereunder while allowing the appeal filed by the Respondents, West Bengal State Electricity Dist. Co. Ltd. (earlier known as West Bengal State Electricity Board) he allowed the Appeal and set aside the award dated 30.4.2011 passed by the Ld. Arbitral Tribunal and held that the Appellants herein were not entitled to claim price adjustment on any portion of the works involving Japanese Currency "Yen" and that the Respondents were entitled to recover the sum of Rs. 41,76, 93, 410/- being the retention money said to have been paid in excess to them. The Ld. Judge also directed the appellants herein to pay a sum of Rs. 15 lakhs being Costs of the proceedings before the Ld. Arbitral Tribunal and further pay Costs of Rs. 1 lakh being Costs of the proceedings before the court of the ld. District Judge.
(2.) The facts of the case are as follows:- A) The Respondents herein were earlier known as West Bengal State Electricity Board but after restructuring w.e.f. 1.4.2007, it came to be known as West Bengal State Electricity Dist. Co. Ltd. (WBSEDCL) B) Construction of two Rock- Filled Dams with Central Clay core for upper and lower reservoirs with a live storage of 13 million Cu meter each, twin water conductor through tunnel shafts, and underground powerhouse 157 x 225 x 48 (m) to accommodate four numbers reversible pump turbines of 225 mw each, an underground transformer cavern with an access tunnel, 400 kv gas insulated-sub-station linked through a cable tunnel being lot-4 Project and concerning the main civil works of Purulia Pumped Storage project (capacity 4x 225 mw) was the subject matter of the said project. C) The main activities of the project was started from 12.3.2002. Two numbers of 400 kv double circuit transmission lines had been developed connecting Durgapur and Arambagh with the said project to transmit and receive bulk power. The infrastructure of the office building, township consisting of 302 numbers of quarters with utility structure etc. had been built up in the project area. D) In order to set up its 4x 225 mw units of the said Purulia Pumped Storage project, on Kisto Bazar nala in the District of Purulia, West Bengal, the Respondents herein invited International Competitive Bids under JBIC (formally OCEF) loan no. ID-P 98 dated 28.2.1995 for construction and completion of main civil works as specified in the Bids Specification entitled "Lot 4 Main Civil Works for Purulia Pump Storage Project". E) The Appellants herein Taisei Corporation, Japan participated in the said Tender vide their proposal dated 8.9.1999 and the Respondents herein accepted the Bid and awarded the contract to them vide their letter of award no. ACE/PPSP/ICB/Lot-4/426 dated 27.6.2001 which was also accepted by the Appellants herein by their letter no. TC 2001270601 dated 27.6.2001. F) The said contract was allotted vide contract no. WBSEB/PPSP/ICB/Lot 4 /2001-02 for the contract price of Indian Rupees 4,116,043,254.00 (4 Billion 116 million 43 thousand 254 only) and of foreign currency, Yen of Rs. 7,781,458,650.00 (seven billion 781 million 458 thousand 650 only) G) The project was completed within the stipulated date of completion i.e. 11.2.2007.
(3.) It appears that a dispute arose between the parties relating to the payment of "Price adjustments" in terms of Clause 70.1 read with the connected table of weighing co-efficient under para 15 and sources of indices under para 16 and price adjustments formulae under para 17 of the Appendix to Tender (Clause 4.2) of the contract document. According to the case of the appellants herein, the modality of operation for Price Adjustments Clause was settled in a joint meeting with the "Engineer" and "consultants" by them as per the provisions of the Contract on 6th to 8th May, 2003. The Respondents herein paid interim bills along with price adjustments portion upto March 2005 duly certified by them. The Respondents herein then informed and raised the objection on 25.6.2005 on such payment of price adjustment and suspended further payment for want of approval of the West Bengal State Electricity Board.;