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HIGH COURT OF DELHI
FAO(OS) 85/2013
NATIONAL fflGHWAYS AUTHORITY OF INDIA Appellant
Through Mr. Sudhir Nandrajog, Sr. Adv. with Ms.Padma Priya, Ms. Meenakshi Sood and Mr.Dheeraj Philip, Adv.
FAO(OS) 85/2013
NATIONAL fflGHWAYS AUTHORITY OF INDIA Appellant
Through Mr. Sudhir Nandrajog, Sr. Adv. with Ms.Padma Priya, Ms. Meenakshi Sood and Mr.Dheeraj Philip, Adv.
VERSUS
CGGC-SOMA (JV) Respondent
Through None.
Through None.
FAO(OS) 86/2013
NATIONAL fflGHWAYS AUTHORITY OF INDIA Appellant
Through Mr. SudhirNandrajog, Sr. Adv. with Ms.Padma Priya, Ms. Meenakshi Sood and Mr.Dheeraj Philip, Adv.
NATIONAL fflGHWAYS AUTHORITY OF INDIA Appellant
Through Mr. SudhirNandrajog, Sr. Adv. with Ms.Padma Priya, Ms. Meenakshi Sood and Mr.Dheeraj Philip, Adv.
VERSUS
Through None.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
11.02.2013 CM Appl. No. 2421/2013(exemption) in FAO(OS) 85/2013
CM Appl. No. 2444/2013(exemption) in FAO(OS) 86/2013
Exemption is allowedsubjectto just exceptions.
HON'BLE MS. JUSTICE INDERMEET KAUR
11.02.2013 CM Appl. No. 2421/2013(exemption) in FAO(OS) 85/2013
CM Appl. No. 2444/2013(exemption) in FAO(OS) 86/2013
Exemption is allowedsubjectto just exceptions.
FAO(OS) 85/2013 & 86/2013 page 1of6
2013:DHC:7286-DB
2013:DHC:7286-DB
FAO(OS) 85/2013 and CM Appl. No. 2420/2013(stav^
FAO(OS) 86/2013 and CM Appl. No. 2443/2013rstav^
The appellant/NHAI has impugned the common order dated
03.12.2012 in terms whereof the learned Single Judge has rejected two objections of the appellant under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the said Act) qua two separate Awards dated 31.07.2012 and 14.08.2012 while issuing limited notice on the question of compound interest not being admissible to the r respondent.
The first aspect is pertaining to dispute No. 2 arising out of the issue of clearing and grubbing alleged to be contrary to the scope of the work of
BOQ Item No. 1.01 which includes back filling. The submission of the learned senior counsel for the appellant is that the appellant in their wisdom took a conscious decision to amend the clause to convey the intent of the appellant, especially in view of the interpretation of the earlier clause. It is thus a submission that the clause as now structured includes excavation, back filling and compaction with suitable material to restore the original
I ground level and the latter two aspects cannot be ignored.
The perusal of the impugned order shows that the learned Single
Judge has found no reason to interfere with the Award of the Arbitral
Tribunal qua this aspect as the view taken by the Arbitral Tribunal was a plausible view. Learned senior counsel for the appellant has invited out attention to the Award where this aspect arising from the challenge of the clause has been noticed as under:-
The appellant/NHAI has impugned the common order dated
03.12.2012 in terms whereof the learned Single Judge has rejected two objections of the appellant under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the said Act) qua two separate Awards dated 31.07.2012 and 14.08.2012 while issuing limited notice on the question of compound interest not being admissible to the r respondent.
The first aspect is pertaining to dispute No. 2 arising out of the issue of clearing and grubbing alleged to be contrary to the scope of the work of
BOQ Item No. 1.01 which includes back filling. The submission of the learned senior counsel for the appellant is that the appellant in their wisdom took a conscious decision to amend the clause to convey the intent of the appellant, especially in view of the interpretation of the earlier clause. It is thus a submission that the clause as now structured includes excavation, back filling and compaction with suitable material to restore the original
I ground level and the latter two aspects cannot be ignored.
The perusal of the impugned order shows that the learned Single
Judge has found no reason to interfere with the Award of the Arbitral
Tribunal qua this aspect as the view taken by the Arbitral Tribunal was a plausible view. Learned senior counsel for the appellant has invited out attention to the Award where this aspect arising from the challenge of the clause has been noticed as under:-
FAO(OS) 85/2013 & 86/2013 page2 of 6
"From the reading of these Clauses, it is very clear that the work of bacl0ll up to the level as existing before the start of clearing and operations is included within the scope of work of BOQ item 1.01. It is also clear that the backfill is required to be done as per Technical
Specifications Section 300 (which relates to embankment construction).
This baclrfill is nothing but the embankment work startingfrom the level obtained after clearing and grubbing operations and up to the level as existing before the clearing and grubbing operations. Further we note that, the description ofBOQ item 1.01 itself does not have any mention of
C' back fill, but, since, the work is required to be done as per Technical
Specifications clause 201, which in turn, includes the backfill, itfollows that the item cannot be considered complete work backfill. We, therefore agree with the Respondent that the scope of work of BOQ item 1.01 includes the backfill or in other words, the embankment constructionfrom the ground as obtainedafter clearingand grubbing up to theground level as existing before the star ofclearing and grubbing operations."
Learned senior counsel for the appellant submits that having come to the aforesaid conclusion, on a reading of the amended clause, the conclusion arrived at by the Arbitral Award is fallacious. The conclusion is contained in
/ the following terms ^ "We are ofthe view that the embankment work has to startfrom the level obtained after clearing and grubbing because it would make no engineering sense to first bring the grubbed surface to the Undulating levels as existing before the start ofclearing and grubbing operations and then start the embankment The word "original" as referred here, therefore, has to meanthe original or virgin ground as obtained after
"From the reading of these Clauses, it is very clear that the work of bacl0ll up to the level as existing before the start of clearing and operations is included within the scope of work of BOQ item 1.01. It is also clear that the backfill is required to be done as per Technical
Specifications Section 300 (which relates to embankment construction).
This baclrfill is nothing but the embankment work startingfrom the level obtained after clearing and grubbing operations and up to the level as existing before the clearing and grubbing operations. Further we note that, the description ofBOQ item 1.01 itself does not have any mention of
C' back fill, but, since, the work is required to be done as per Technical
Specifications clause 201, which in turn, includes the backfill, itfollows that the item cannot be considered complete work backfill. We, therefore agree with the Respondent that the scope of work of BOQ item 1.01 includes the backfill or in other words, the embankment constructionfrom the ground as obtainedafter clearingand grubbing up to theground level as existing before the star ofclearing and grubbing operations."
Learned senior counsel for the appellant submits that having come to the aforesaid conclusion, on a reading of the amended clause, the conclusion arrived at by the Arbitral Award is fallacious. The conclusion is contained in
/ the following terms ^ "We are ofthe view that the embankment work has to startfrom the level obtained after clearing and grubbing because it would make no engineering sense to first bring the grubbed surface to the Undulating levels as existing before the start ofclearing and grubbing operations and then start the embankment The word "original" as referred here, therefore, has to meanthe original or virgin ground as obtained after
FAO(OS) 85/2013 & 86/2013 u clearing and grubbing. Further one continuous sentence "Earth embankment construction shall be measured separately by taking cross sections at intervals after clearing and grubbing and if necessary compaction oforiginal ground before the embankment work starts... ". The
"compaction" here in the context of the sentence can only mean the compaction of the ground as obtained after clearing and grubbing. It cannot mean the ground as existing before the start of clearing and grubbing and which has now been brought up to the level as existing before the start of clearing and operations or where the ground has not been grubbed at all. The word "compaction " would be redundant ifit was to mean the compaction ofground which is by M>ay ofbackfill because the
Technical Specifications of back fill in any case already stipulate compaction etc."
The Arbitral Tribunal thereafter proceeded to discuss the word
"original' to mean the ground as obtained after clearing and grubbing operation and not the one as existing before which aspect is stated to be evident from amended clause 305.8 as also un-amended clause 305.8 existing before the contract.
We are of the view that it is not a case where Arbitral Tribunal mistakenly applied the ratio of an un-amended clause to the amended clause.
The Arbitral Tribunal was conscious of the amendment carried out, it did not agree with the appellant for the reasons recorded therein. The Arbitral
Tribunal consists of three technical members well versed in the field and the very purpose ofreferring such a dispute to a technical arbitral tribunal is that persons familiar with the trade may determine this aspect including interpretation of clauses. The Arbitral Tribunal thus took a conscious decision while interpreting the amended clause in a manner which did not agree with the submission ofthe appellant.
The interpretation of such a clause does not ipsofacto give a channel of challenge to the appellant by merely alleging that it is perverse or contrary to the public policy of India. May be the appellant while amending the contract had a particular thought process in his mind as submitted by the learned senior counsel for the appellant but obviously it has not translated into words which clause has been interpreted read with other clauses of the contract.
We are thus not inclined to interfere with this aspect.
The second aspect of challenge is arising from dispute No. 3 regarding providing and laying Ml5 Grade concrete in pipe bedding under
Item 5.14 BOQ. The submission of the learned senior counsel for the appellant both before the learned Single Judge and before us is that there appears to be a mistake in the contract by including the same works twice over as this work is covered in the scope of the BOQ 5.14 as also 5.15 and the contractor should not be paid twice over. The Arbitral Tribunal found that a plain reading of both the BOQ items indicate a clear contradiction.
The Arbitral Tribunal proceeded to give a detailed reasoning before concluding that the contractor was misled in quoting a particular rate for
BOQ item No. 5.14 under the belief that the work of pipe bedding under the
RCC pipe was outside the scope ofwork.
Once again the view taken by the learned Single Judge, with which we are in complete agreement, is basedon the Arbitral Tribunal being
L entitled to take a plausible view while interpreting the clauses ofthe contract one way or the other, an aspect certainly not requiring judicial intervention under Section 34 of the said Act.
We are thus ofthe view that both the aforesaid aspects on which there is a finding against the appellant by the learned Single Judge, we find no reason to interfere.
Appeals are dismissed.
FEBRUARY 11,2013 rb SANJAY KISHAn KAUL, J INDERMEET KAUR, J
- l-i J)
HIGH COURT OF DELHI
FAO(OS) 86/2013
NATIONAL HIGHWAYS AUTHORITY OF INDIA Appellant
Through: Ms.Padma Priya and Ms.Meenakshi Sood, Advocates.
"compaction" here in the context of the sentence can only mean the compaction of the ground as obtained after clearing and grubbing. It cannot mean the ground as existing before the start of clearing and grubbing and which has now been brought up to the level as existing before the start of clearing and operations or where the ground has not been grubbed at all. The word "compaction " would be redundant ifit was to mean the compaction ofground which is by M>ay ofbackfill because the
Technical Specifications of back fill in any case already stipulate compaction etc."
The Arbitral Tribunal thereafter proceeded to discuss the word
"original' to mean the ground as obtained after clearing and grubbing operation and not the one as existing before which aspect is stated to be evident from amended clause 305.8 as also un-amended clause 305.8 existing before the contract.
We are of the view that it is not a case where Arbitral Tribunal mistakenly applied the ratio of an un-amended clause to the amended clause.
The Arbitral Tribunal was conscious of the amendment carried out, it did not agree with the appellant for the reasons recorded therein. The Arbitral
Tribunal consists of three technical members well versed in the field and the very purpose ofreferring such a dispute to a technical arbitral tribunal is that persons familiar with the trade may determine this aspect including interpretation of clauses. The Arbitral Tribunal thus took a conscious decision while interpreting the amended clause in a manner which did not agree with the submission ofthe appellant.
The interpretation of such a clause does not ipsofacto give a channel of challenge to the appellant by merely alleging that it is perverse or contrary to the public policy of India. May be the appellant while amending the contract had a particular thought process in his mind as submitted by the learned senior counsel for the appellant but obviously it has not translated into words which clause has been interpreted read with other clauses of the contract.
We are thus not inclined to interfere with this aspect.
The second aspect of challenge is arising from dispute No. 3 regarding providing and laying Ml5 Grade concrete in pipe bedding under
Item 5.14 BOQ. The submission of the learned senior counsel for the appellant both before the learned Single Judge and before us is that there appears to be a mistake in the contract by including the same works twice over as this work is covered in the scope of the BOQ 5.14 as also 5.15 and the contractor should not be paid twice over. The Arbitral Tribunal found that a plain reading of both the BOQ items indicate a clear contradiction.
The Arbitral Tribunal proceeded to give a detailed reasoning before concluding that the contractor was misled in quoting a particular rate for
BOQ item No. 5.14 under the belief that the work of pipe bedding under the
RCC pipe was outside the scope ofwork.
Once again the view taken by the learned Single Judge, with which we are in complete agreement, is basedon the Arbitral Tribunal being
L entitled to take a plausible view while interpreting the clauses ofthe contract one way or the other, an aspect certainly not requiring judicial intervention under Section 34 of the said Act.
We are thus ofthe view that both the aforesaid aspects on which there is a finding against the appellant by the learned Single Judge, we find no reason to interfere.
Appeals are dismissed.
FEBRUARY 11,2013 rb SANJAY KISHAn KAUL, J INDERMEET KAUR, J
- l-i J)
HIGH COURT OF DELHI
FAO(OS) 86/2013
NATIONAL HIGHWAYS AUTHORITY OF INDIA Appellant
Through: Ms.Padma Priya and Ms.Meenakshi Sood, Advocates.
VERSUS
Through:
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
29.05.2013 CM No.8173/2013 Allowed subject to just exceptions.
CM No.8172/2013 The application has been filed seeking a clarification in pursuance to the order dated 11.02.2013 ofthis Court with regard to claim No. 1. This claim
No. 1 was not dealt with in the order dated 11.02.2013 on account ofthat claim apparently not having been pressed before the leamed single Judge. The appellant moved the leamed single Judge for clarification stating that what they had not disputed was that the identical plea of the appellant regarding that claim stood rejected in other proceedings and thus to that extent the matter inissue was covered against them byjudgments oftheDivision Bench.
The leamed single Judge interms ofthe order dated 12.04.2013 has clarified
FAO(OS)No.86/2013 Page 1of2 that it is in that context that it was observed that the claim was not being pressed. It appears that the appellant seeks to take this matter further to the
Supreme Court as similar matters are stated to be pending and thus seeks to plead as mentioned aforesaid.
In view of the clarification issued by the learned single Judge, we observe that objections to claim No.l of the appellant are not sustainable as the matter in issue is no more res integra in view of the
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
29.05.2013 CM No.8173/2013 Allowed subject to just exceptions.
CM No.8172/2013 The application has been filed seeking a clarification in pursuance to the order dated 11.02.2013 ofthis Court with regard to claim No. 1. This claim
No. 1 was not dealt with in the order dated 11.02.2013 on account ofthat claim apparently not having been pressed before the leamed single Judge. The appellant moved the leamed single Judge for clarification stating that what they had not disputed was that the identical plea of the appellant regarding that claim stood rejected in other proceedings and thus to that extent the matter inissue was covered against them byjudgments oftheDivision Bench.
The leamed single Judge interms ofthe order dated 12.04.2013 has clarified
FAO(OS)No.86/2013 Page 1of2 that it is in that context that it was observed that the claim was not being pressed. It appears that the appellant seeks to take this matter further to the
Supreme Court as similar matters are stated to be pending and thus seeks to plead as mentioned aforesaid.
In view of the clarification issued by the learned single Judge, we observe that objections to claim No.l of the appellant are not sustainable as the matter in issue is no more res integra in view of the
ORDER
of the
Division Bench ofthis Court as mentioned by the learned single Judge in para
3 ofthe order dated 12.04.2013..
The application accordingly stands disposed of
SANJAY KISHAN KAUL, J SANJEEV SACHDEVA, J MAY 29,2013/dm
FAO (OS) No.86/2013 Page 2 of2
Division Bench ofthis Court as mentioned by the learned single Judge in para
3 ofthe order dated 12.04.2013..
The application accordingly stands disposed of
SANJAY KISHAN KAUL, J SANJEEV SACHDEVA, J MAY 29,2013/dm
FAO (OS) No.86/2013 Page 2 of2