CHIEF ADMINISTRATOR DANDAKARANYA PROJECT KORAPUT ORISSA Vs. PRABARTAK COMMERCIAL CORPORATION LTD

JUDGEMENT

(1.) THIS judgment shall also govern the disposal of Miscellaneous (First) Appeal No. 174 of 1970 (The Chief Administrator, Dandakaranya Project v. M/s. Prabartak Commercial Corporation Ltd.). This appeal under Section 39 (1) (vi) of the Arbitration Act, 1940, is directed against an order of the Additional District Judge, Jagdalpur, dated 25 -7 -1969 remitting the award of Shri S. D. Jha, Advocate, Jagdalpur, dated 16 -12 -1968 for reconsideration on certain issues, and the connected appeal is directed against the preliminary decree drawn by the District Judge, Jagdalpur, dated 2 -7 -1970 in conformity with the awards.

(2.) THE facts, in brief, are as follows : - The respondent, which is a firm of contractors, entered into a contract with the appellants, for the collection and supply of "hard granite chips", for the construction of NH/43, at four reaches, namely, (a) Mile 154/0 to Mile 166/0, (b) Mile 166/0 to Mile 179/4, (c) Mile 183/4 to Mile 191/0 and (d) Mile 196/0 to Mile 198/0. The respondent, however, experienced difficulty in supplying "hard granite chips". That was because the metal quarried was not of superior quality. The question of substituting 'hard stone chips' for "hard granite chips" was, therefore, negotiated and the Superintending Engineer permitted the respondent in terms of clause 13 -A of the agreement, to deviate from the term of the contract and supply, instead, 'hard stone chips' at the following reaches, viz., (a) 166/0 to 179/4, (b) 183/4 to 191/0, and (c) 196/0 to 198/2. He held that the respondent would be entitled to payment for the substituted material according to the Schedule of Rates of the Dandakaranya Project, i.e., for 'hard stone chips' (other than granite), which was inclusive of carriage to site of work and stacking, complete.

(3.) WHILE making supply to reach 166/0 to 179/4, the respondent, however, claimed that payment for lead should be made according to the terms of the contract. This was contrary to the decision of the Superintending Engineer, conveyed by the Executive Engineer vide his letter No. 721/G -8 dated 4 -2 -1961 to the effect : -