Madras High Court
Tuticorin Port Trust vs M/S. Jan De Nul Dredging India Pvt.Ltd
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
O.P.No.152 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
20~08~2019 10~09~2019
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
O.P.No.152 of 2015
Tuticorin Port Trust
(V.O.Chidambaranar Port Trust),
Tuticorin - 628004. .. Petitioner
.Vs.
1. M/s. Jan De Nul Dredging India Pvt.Ltd.,
No.2,(I Floor) 25th East Street,
Kamaraj Nagar,
Thiruvanmiyur
Chennai 600041.
2. Hon'ble Chief Justice R.C.Lahoti,
Chief Justice of Supreme Court of India (Retired)
B-56, Sector-14,
Noida - 201301.
3. Hon'ble Justice P. Krishnamoorthy (Retired)
Former Judge,
High Court of Karnataka,
Karthika, Krishna Swami Road,
Ernakumal, Cochi - 682035.
4. Dr.Anthony Houghton SC
Des Voeux Chambers
1/24
http://www.judis.nic.in
O.P.No.152 of 2015
38th Floor, Gloucester Tower,
The Landmark, Central,
Hongkong. .. Respondents
***
Prayer: Petition filed under Section 34 of the Arbitration and
Conciliation Act, 1996 praying to set aside the Award dated
18.10.2014 insofar as it allows the claim No.3,4,5,6,7,9 and 10 vide
"Part L" of the award amounting to Rs.426,883,388/- passed by the
Respondents 2 to 4 along with costs.
For Petitioner : Mr. Yashodvardhan
for Mr.S.Yashwanth
For Respondents: Mr. Jose John for
M/s. Kindgs and Patridge
ORDER
Challenging the Three Members Arbitral Award, the present Original Petition has been filed.
2. The brief facts leading to file this Original Petition is as follows:
2.(a) The Petitioner viz., Tuticorin Port Trust is a Board of Trustees constituted under Section 3 of Major Port Trust Act 1963.2/24
http://www.judis.nic.in O.P.No.152 of 2015 Claimant company registered under the Indian Companies Act 1956.
The Petitioner's Port invited tenders consisting of technical/commercial bid with respect to work - 'Deepening of the Channel and Basin to Cater to 12.80 M Draught Vessel at Tuticorin Port'. The claimant was one of the bidders and work order was issued on 28.10.2010. Formal contract was executed on 27.12.2010. The material events which have taken place before the Tribunal are set out in the following table:
DATES AND EVENTS S.No. Date Description 1 15/07/2009 Notice inviting tender issued 2 20/08/2009 Pre-bid meeting with tenderers 3 26/08/2009 Port's clarifications to the pre-bid queries received Originally scheduled date of submission of bid and opening of 4 070909 tender 5 30/09/2009 Amended last date for submission of tender (1st extension) 6 15.10.2009 Amended last date for submission of tender (2nd extension) 7 30.10.2009 Amended last date for submission of tender (3rd extension) 8 091109 Amended last date for submission of tender (4th extension) 9 28.10.2010 Issue of Work order 10 27.12.2010 Formal Contract executed 11 28.12.2010 Commencement of dredging works Monthly Running Account Statement 001 12 010111 Running Account Bill Mobilisation No.JDN-001 13 17.03.2011 Soil investigation by Fugro Geotech 3/24 http://www.judis.nic.in O.P.No.152 of 2015 S.No. Date Description to
03.09.2011 14 31.08.2011 Dredging Works completed\ BHD Jerommeke demobilized and dispatched via M/v Sky 15 030911 Oceanus 26.08.2011 Join gt Post dredge survey along with independent third party to surveyor 16 03.09.2011 Post dredge survey details including draft final statement along 17 060911 with bill of quantities submitted to the Respondent.
Final Account statement - 009 (including idle time) Running Account bill dredging works - final statement no.JDN 018 (excluding idle time) Demobilisation bill No.JDN-019 18 060911 Running account bill - fuel escalation final statement JDN-020 Post dredge survey charts certified by third party submitted to 19 080911 the Respondent.
20 20/09/2011 CSD Zheng He demobilized 21 30/09/2011 site cleared by Claimant 19/11/2011 Post Commissioned at New Depth of 14.10 m CD in basin and 22 14.70 m CD in approach channel Taking over certificate and Defect Liability Period Certificate received from the Respondent indicating the conclusion of all 23 020412 Works under the contract.
24 29.05.2012 claimant submits final statement 25 25.07.2012 Respondent bill of quantities received 26 060812 Notice issued to Respondent on final payments 27 24.08.2012 Retention money received 28 20.09.2012 Reference to Arbitration 29 19.11.2012 Rs.95,23,861 - Part release of recovered money in running bills.
4/24http://www.judis.nic.in O.P.No.152 of 2015 2(b) The claimant has raised the following claims:
BoQ BoQ payments overdue as per Respondent's final Quantities dated 25.07.2012 199,632,249 Claim No.1 Reimbursement of Wharfage Charges 14,065,411 Claim No.2 Soil Conditions in the Approach Channel 1,27,72,15,471 Claim No.3 Reimbursement of Customs Duties enacted after tender 9,127,096 Claim No.4 Employer's Reclassification of new Basin Works to existing basin works 1,06,267,974 Claim No.5 Contractors Equipment idle due to Traffic widthin Port Entrance 15,788,952 Claim No.6 Contractors Equipment idle due to Traffic outside Port Entrance 63,332,550 Claim No.7 Contractors Equipment idle due to the Respondent Failure to provide possession and access to Site 146,604,216 Claim No.8 Contractors Equipment idle due to adverse physical obstructions. 33,302,775 Claim No.9 Contractors Equipment idle due to the Respondent delay in Providing No Objection Certificate 85,762,600 Claim No.10 Contract interest Reimbursement due to Respondents Payment Default (as at 30 April 2013) 466,409,752 Cllaim No.11 Contractors losses due to relative Exchange Rates Euro versus Indian Rupee due to relative Exchange Rates Euro versus Indian Rupee due to respondent's payment Default (As at 30 April 2013) 170,744,284
------------------
Total Due to the Claim 2,588,253,330
------------------
5/24
http://www.judis.nic.in
O.P.No.152 of 2015
2(c) The Respondent has raised a defence denying the claims and also raising a limitation. Since the defence has been taken for every claim all the defence need not be extracted, as the Arbitral Tribunal has considered all the defence in threadbare analysis and while rejecting the some of the claims, allowed the remaining claims. The details of which are as follows:
Claim Description Amount Result
No. claimed
BoQ BoQ payments overdue as per Respondent's final 199,632,249 199,632,249
Quantities dt. 25.07.12 (ALLOWED)
Reimbursement of Wharfage Charges 14,065,411 REJECTED
2 Soil Conditions in the Approach Channel 1,277,215,471 REJECTED
3 Reimbursement of Customs Duties enacted after tender 9,127,096 9,127,096
(ALLOWED)
4 Employer's Reclassification of new Basin Works to 106,267,974 106,267,974
existing basin works (ALLOWED)
5 Contractors Equipment idle due to Traffic within Port 15,788,952 15,788,952
Entrance (ALLOWED)
6 Contractors Equipment idle due to Traffic outside Port 63,332,550 63,332,550
Entrance (ALLOWED)
7 Contractors Equipment idle due to the Respondent 146,604,216 146,604,216
Failure to provide possession and access to Site. (ALLOWED)
8 Contractors Equipment idle due to adverse physical 33,302,775 REJECTED
obstructions.
9 Contractors Equipment idle due to the Respondent delay 85,762,600 85,762,600
in Providing NOC. (ALLOWED)
10 Contract interest Reimbursement due to Respondents 466,409,752 CLAIM ALLWD BUT
NOT QUANTIFIED
Payment Default
11 Contractors losses due to relative Exchange Rates Euro 170,744,284 REJECTED
versus Indian Rupee due to relative Exchange Rates Euro versus Indian Rupee due to respondent's payment Default 6/24 http://www.judis.nic.in O.P.No.152 of 2015
3. Though the entire Award has been challenged, learned Senior Counsel appearing for the Petitioner has fairly considered that except claim No.7, the Award of the Arbitrators cannot be faulted. Hence, it is his contention that he is restricted his argument only in respect of Claim No.7 viz., Contractors Equipment idle due to the Respondent failure to provide Possession of access to site.
4. The main contention of the learned Senior Counsel for the Petitioner is that the period of completion is 18 months as per the contract, whereas the work has been completed within 9 months and in the contract the 1st Respondent agreed to use one dredger. They used 2 dredgers which forced the Port authorities to divert the traffic because of the large dredger. It is the contention of the learned Senior Counsel that as per the contract only 465 idle hours time estimated and the date given for bigger drudger cannot be used for minor dredgers. Whatever agreed in the contract should not have been altered. Hence his main contention that the Respondent has agreed to use one Backhoe Dredger having bucket capacity 3 to 4 Cubic Meters -7/24
http://www.judis.nic.in O.P.No.152 of 2015 1 No. Hence, it is his contention that the Geromic BHD dredger is not covered by the agreement as it is not a major dredger. Similarly, the Engineer was not notified by the contractor within 12 hours of each occasion of delay. The claim ought not to have been allowed under Claim No.7. Hence it is his contention that the Award in respect of the claim No.7 is liable to be set aside. It is also the contention of the learned senior counsel that the interest awarded by the Arbitrators is also excessive and the same may be reduced.
5. In support of his contention he placed reliance of the following judgments reported in
1) Oil & Natural Gas Corporation Ltd., vs. Saw Pipes Ltd, [2003 (5) SCC 705]
2) Krishna Bhagya Jala Nigam Ltd., vs. G.Harischandra Reddy and another [(2007) 2 SCC 720]
6. Learned counsel appearing for the Respondent submitted that the contract gave only an illustrated list of equipment required prospectively. Similarly the tender also clearly indicate that the choice 8/24 http://www.judis.nic.in O.P.No.152 of 2015 of the technology plant and equipment proposed to be deployed will be left to the choice of the intending tenderers subject to satisfying the Port Trust and the adequacy of the proposed technology and plant and equipment. Clause 10 and sub-Clause (iv) of the contract also indicated that more than one dredger can be deployed for the work.
Clause 14.1 of the contract clearly indicate that the programme of the work to be submitted for the approval of the Petitioner including the details of dredgers etc., Clause 44 relates to permission of continuous work and further Clause 57.1 also indicates that the number of dredgers mobilised and the cost of mobilisation/demobilisation with break up details shall be furnished and Clause 38 of the Contract also clearly indicates that the contractor shall furnish idle time charges for the major dredgers proposed to be deployed by him in the BoQ. The rate for idle time charges quoted by the lowest Bidder will be finalised taking into account the lowest idle time charges quoted by other bidders. It is also his contention that the programme was submitted for three dredgers and it was accepted by the Petitioner. Hence the learned counsel submitted that the learned 3 member arbitrators have thoroughly analysed all the issues and passed the award. Hence, the 9/24 http://www.judis.nic.in O.P.No.152 of 2015 award cannot be interfered in any manner.
7. The learned Arbitrators have framed the issues in two categories which are as follows:
S.No. General Issues
1 a. Whether the claims both as individual claims and as collective
claims are barred under Section 120 of the Major Port Trust Act?
b. Whether the claimant has increased the value of any of their claims at various stages and if so does this affect the Claimant's entitlements (if any) in the arbitration?
c. Whether the Claimant is entitled to raise issues regarding idle time of dredgers not raised during the pre-bid meetings?
S.No. Specific Issues
1 Reimbursement of Wharfage Charges
1 Whether the claimant is entitled to reimbursement of wharfage
charges levied by the Respondent on the cargo vessel carrying Dredger parts, attendant craft and machinery? 2 Soil Conditions in the Approach Channel 2 a. Whether the Claimant is entitled to compensation for loss and expenses suffered due to unforeseen soil conditions in the Approach Channel?
b. Whether the claimant has took the reisk of hard materials by performing their dredging in the Approach Channel without drilling and blasting the alleged hard rock area, and if so, 10/24 http://www.judis.nic.in O.P.No.152 of 2015 S.No. Specific Issues whether this reduces the claimant's entitlement (if any) to such loss and expense?
c. Whether due to prior experience by the Claimants for the work done in the same port in the near eara, they are estopped from raising a claim for loss and expense arising out of the alleged dredging of hard rock in the approach channel?
d. Whether the post contract soil investigation allegedly made by IIT-M, Mumbai is binding on the Respondent Port?
e. Whether the Claimant should have insured its equipment against damage arising out of dredging hard material?
f. Whether any failure of the claimant to take insurance exonerates the Employer from liability for any claim based on unforeseen soil conditions?
3 Reimbursement of Customs Duties Enacted after Tender. 3 a. Whether the customs duties paid by the Claimant pursuant to Customs Notification No.21 of 2011 dated 1 March 2011 are to be reimbursed by the Respondent?
b. Whether before payment of customs duty the claimant was bound to raise the issue with the Port as to enable the Port to raise it with the customs?
c. Whether the claimant was bound to prefer an appeal regarding the imposition of customs duties before the appropriate Appellate Authority?
4 Employer Reclassification New Basin Works to Existing Basin Works 4 a. Whether the classification in the New Basin and the Existing Basin for the purpose of valuation of works is arbitrary and unilateral?
b. Whether the work done by the Claimant can be treated as 11/24 http://www.judis.nic.in O.P.No.152 of 2015 S.No. Specific Issues New Basin works or Existing Basin works?
c. Whether the Respondent has proved the final dredge quantities in the Respondent's letter dated 25 July 2012?
d. Whether the claimant is, in any event entitled to the valuation difference between its final Bill of Quantities dated 6 September 2011 and the Respondents Bill of Quantities dated 25 July 2012 amounting to Rs.106,267,974/-?
e. Whether the Claimant dredged the area in front of berth No.9 from the level - 7.30 to -11.90 m or whether Dharti Dredging Infrastgructure dredged that area from -7.30 m to -11.90 m?
5 Contractor's Equipment Idle due to Traffic within Port Entrance.
5 Whether the Claimant is entitle to its claim for idling of contractor's equipment due to traffic within port entrance? 6 Contractor's Equipment Idle Due to Traffic outside Port Entrance 6 Whether the Claimant is entitled to its claim for idling for contractor's equipment due to traffic outside port entrance? 7 Contractor's Equipment Idle Due to the Respondents Failure to Provide Possession of and Access to site 7 a. Whether the Claimant is entitled to its claim for idling of BHD Jerommeke due to Respondents failure to provide possession of and access to site?
b. Whether the BHD Jerommeke is a "major dredger" by reason of its having a cutter power of 3000 HP or more as defined in Clause 38 of Section 3, and if so, whether idle time is to be determined by reference to BOQ item 5 at page 14 of Vol 1 of the Agreement?
8 Contractor's Equipment Idle due to Adverse Physical Obstructions.
8 Whether the Claimant is entitled to its claim for idling of
12/24
http://www.judis.nic.in
O.P.No.152 of 2015
S.No. Specific Issues
contractor's equipment due to adverse physical obstructions? 9 Contractor's Equipment Idle due to Respondents Delay in Providing Non-Objection Certificate.
9 a. Whether the Respondent delayed issuing the "No objection Certificate" for demobilization of CSD Zheng He such that the claimant is entitled to its claim for idling of CSD Zheng He? 10 Common Issue Re: Claim Nos.5-6-7-8-9 a. Whether the idle time claim were made by the power of attorney in writing within 12 hours of the occurrence of idling to the designated Chief Engineer of the Port as mentioned in Clause 51.1 of the agreement? If not, what effect does this have on the Claimant's idling claims?
b. Whether the Claimant is entitled to five idle time charges notwithstanding the early completion of dredging part of the work by 7 months?
c. Whether any of the Claimant's claims are to be reduced because of the alleged "excess machineries" brought in for the 10 work for by the Claimant?
11 Interest 11 a. Whether the Claimant is entitled to interest as prayed for? 12 Contractors Losses Due to Relative Enchange Rates Euros Versus Indian Rupee Due to Respondents Payment Default. 12 a. Whether the Respondent is liable to compensate the Claimant for losses due to relative exchange rates Euros vs. Indian Rupees after the completion of the contract? 13 Miscellaneous 13 a. Whether the Respondent's deduction of rental charges is a breach of contract and, if so, whether the claimant is entitled to be reimbursed in respect of such deductions?
b. Whether the Claimant exceeded the space allotted for office and workshop within the customs bond area inside the Green Gate, and if so, whether the Respondent is entitled to charge 13/24 http://www.judis.nic.in O.P.No.152 of 2015 S.No. Specific Issues rental for any such excess space?
14 Whether the claimant has damaged the Oil Spill Boom and if so, whether the Claimant is entitled to be reimbursed the deduction made by the Respondent on this account?
15 Whether the Respondent's charge of interest for alleged "excess payment" is contrary to the contract and, if so, whether the claimant is entitled to be reimbursed the deduction made by the Respondent on this account?
16 a. Whether the Respondent's charges made for Floating Crane Hire Charges is contrary to the contract and, if so, whether the Respondent has to repay the Claimant the amounts deducted as Floating Crane Hire Charges?
b. Whether KSP & Sons has done any work of the Claimant to complete the project, and if so, whether the Respondent is entitled to recover any such costs?
17 Whether the Respondent has to repay the Claimant the amounts deducted against Insurance costs due to the Claimant? 18 Whether the Claimant is entitled to be reimbursed for the various deductions made by the Respondent? 19 To what other reliefs are the parties entitled?
8. Every claim the learned arbitrators dealt separately based on the contract and evidence of both the parties. Since the challenge is only with regard to the claim No.7 viz., contractors equipment idle due to the Respondent failure to provide possession of and Access to site.
The respondent claimed Rs.1,46,604,216 and the above amount has been allowed. The learned Arbitrators have held as follows as far as 14/24 http://www.judis.nic.in O.P.No.152 of 2015 claim No.7 is concerned.
K-7 Claim No.7:
Contractors equipment idle due to the Respondents failure to provide possession of and access to site - INR.146,604,216.
and specific issue No.7 (a) and (b) a. Whether the Claimant is entitled to its claim for idling of BHD Jerommeke Due to Respondent's failure to provide possession of an access to site?
b. Whether the BHD Jermommeke is a "major dredger" by reason of its having a cutter power of 3000 HP or more as defined to Clause 38 of Section 3, and if so, whether idle time is to be determined by reference to BoQ item 5 at page 14 of Vol.I of the agreement?
K-7.1 According to the claimant the employer and its engineer were submitted the detailed evaluation of idle time incurred in respect of vessel idling due to the Respondents failure to give the claimant assess to and possession of the site in order to execute the works in a regular and orderly manner. The valuation of such idling time is INR.146,604,216 as per annexure submitted with the claim 15/24 http://www.judis.nic.in O.P.No.152 of 2015 (CV-VI, pp 153-159). The entitlement to such payment is to be found in clause 51.1 of Section III (CV-I, p.122) and B.O.Q. item No.5 (CV-II, p-14).
K-7.2 The statement of defense does not raise any dispute about the data filed by the claimant. The defenses raised are only to; Firstly, that Jerommeke BHD is not covered by the agreement as it is not a major dredger, and secondly, engineer was not notified by the contractor within 12 hours of each occasion of delay as required by Clause 51.1 of Section-III of the Agreement.
K-7.3 The defenses do not call for a detailed scrutiny here at in as much as they have already been dealt with under Claim No.5 & 6 (See para K-5.8 to K-5.10 of this Award). For the reasons assigned there at, the twin defenses are held unsustainable and hence rejected. In fact during the course of hearing the stand taken on behalf of the Respondent has been that Claims No.5,6 and 7 deserve to be dealt with together as the relevant considerations for adjudging merits thereof would be similar.
K-7.4 It is the case of the Claimant that all such claims as have accumulated were notified from time to time and promptly by the Claimant to the Chief Engineer. Illustratively, there are letters dated 09.05.2011 (CV-VII, 16/24 http://www.judis.nic.in O.P.No.152 of 2015 p.103), letter dated 02.06.2011 (CV-VII, p.190) and several such letters. The receipt of such letters is not disputed by the Respondent. The defences are only two which we have already dealt with.
K-7.5 Issue Nos.7(a) & (b) are answered in positive, that is, for the Claimant and against the Respondent. It is held that
(a) claimant is entitled to its claim for idling of the BHD Jerommeke due to Respondent's failure to provide possession of an access to site; (b) the BHD Jerommeke is a dredger to be taken into consideration for idle time to be determined by reference to BoQ item 5.
K-7.6 The claim is allowed."
9. In the above back ground, in the light of the submissions of the learned Senior Counsel with regard to the above claim when considered the main submission is that since the contract did not provide for using more than one dredgers and the respondent used more than one dredgers which forced the Port to divert the traffic and only 465 hours has agreed and 500 hours extra dredged and rate given the bigger dredgers cannot be per major dredgers.
17/24http://www.judis.nic.in O.P.No.152 of 2015
10. It is relevant to refer the tender conditions. Clause-C reads as follows:
"(C) Plaint and Equipment – Dredgers and ancillary equipments:
The intending Tenderers should own or hire suitable plant and equipment if it is on hiring, proof of availability of the plant and equipment on lease/charter for the entire duration of the work at short notice specifically for this project shall also be attached. It will be incumbent on the intending Tenderers to describe fully the equipment and plant which they propose to utilize for completing the work within the prescribed period. The choice of technology and plant and equipment proposed to be deployed will be left to the choice of the intending tenderers, subject to satisfying the Port Trust and the adequacy of the proposed technology and plant and equipment.
The Port Trust has assessed and average daily output of 12000 cubic meters for the scenario of deployment of Heavy Duty CSD to complete the work within the specified period of Fourteen Months for which the following indicative plant & equipment could be required.
1. Cutter Suction Dredger having cutter power 18/24 http://www.judis.nic.in O.P.No.152 of 2015 3000 HP or more - 1 No.
2. Self propelled barges having hopper capacity 1600 Cubic Meters - 3 Nos.
3. Sufficient length of Floating / Submersible Pipe lines with and without ball joints 800 mm to 900 mm diameter.
4. Bachoe Dredger having bucket capacity 3 to 4 Cubic Meters - 1 No.
5. Supporting vessels
6. Survey Vessels etc., The tender document is open to firms / companies / voluntary formed Joint Ventures / Consortia meeting all the Minimum Eligibility Criteria as stipulated hereinabove."
11. The Port Trust has assessed and indicated that the above mentioned equipments is required, the fact remains that Clause C of the Tender makes it clear that the choice of technology and plant and equipment proposed to be deployed will be left to the choice of the intending tenderers. The above clause is only an illustrative list of 19/24 http://www.judis.nic.in O.P.No.152 of 2015 equipment required prospectively for the work. Clause 10 the First Right of Refusal also clearly indicate that if an Indian Bidder executes the work by deploying Foreign flag vessel, penalty of Rs.1,00,000/-
stipulated per day per dredger for the period of deployment of such vessel for the work. The above clause itself indicates that more than one dredger can be used for work. Similarly Clause 14.1 of the contract clearly indicate that only the contractor shall provide information regarding detailed description of the arrangements and methods and the contractor while preparing the 'work programme' shall take into account the Dredger Plan to be furnished by him.
12. Clause 44 permits the contractor to work continuously during day and night, including locally recognised days of rest except the three National Holidays. In clause 57.1 sub-clause (iv) deals with the number of dredgers mobilised and the cost of mobilisation / demobilisation with break-up details shall be furnished by the contractor. The nature of the work condition is also clearly set out in Clause Section 3 of Clause 6 of the contract.
20/24http://www.judis.nic.in O.P.No.152 of 2015
13. The Respondent's typed set Volume III Page 972 – 983 clearly indicate that the programme submitted for three dredgers was accepted by the Petitioner. When the tender itself clearly indicate that the nature of the equipment is the choice of the contractor since their experience in this field, merely on the basis of illustrative list of equipment as assessed by the Port, it cannot be said that the contract stipulates only one dredger. The learned Arbitrators had dealt in detail the above aspect in the claim No.5 and 6. In fact clause 38 Section 3 of the contract is also relied upon by the Arbitrators. The tribunal has concluded that Clause 38 read together with Clause 51.1, held that the payment of idle time is not restricted to “major” equipment nor is the restriction only to one item of plant. When the learned Arbitrators have considered the entire aspect and interpreted the contract reasonably, such finding cannot be interfered. As already discussed the contract is only illustrative nature further clauses in the contract indicated above also clearly indicated that there is no restriction to use more than one dredgers. All these aspects considered in detail by the learned Arbitrators. Hence the contention of the learned counsel for the petitioner has no merits. Accordingly the challenge made to the 21/24 http://www.judis.nic.in O.P.No.152 of 2015 award has to fail. The judgment cited by the learned counsel for the petitioner will not help him in any manner.
14. As far as the interest payment is concerned the learned Arbitrators awarded SBI PLR + 2% for Rs.199,632,249 with effect from 6.8.2011 till payment and interest at the rate of 9% p.a. awarded on the balance amount i.e., on Rs.426,882,388 with effect from 26.04.2013 and Clause 57.2 of the Contract makes it clear that interest charges @ SBI Prime lending rate + 2% shall be payable on delayed payments and the Parties have agreed interest, this court is of the view that in contractual rate of interest cannot be reduced.
15. Though the judgment in Krishna Bhagya Jala Nigam Ltd., case (supra) the Honourable Apex Court taking note of the economic reforms in the country the interest regime has changed and the rates have substantially reduced, the Arbitrators reduced the rate of interest to 9% from 18%. The learned Arbitrators passed the award only on the contract rate of interest and thereafter reduced to 9%. Therefore, the contention of the petitioner to reduce interest also has to fail.
22/24http://www.judis.nic.in O.P.No.152 of 2015 Accordingly, the original petition is dismissed.
16. In the result, the Original Petition is dismissed. No costs.
10.09.2019 Index : Yes / No Internet: Yes Speaking/Non-speaking order ggs Copy to:
M/s. Jan De Nul Dredging India Pvt.Ltd., No.2,(I Floor) 25th East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai 600041.23/24
http://www.judis.nic.in O.P.No.152 of 2015 N. SATHISH KUMAR, J.
ggs order in:O.P.No.152 of 2015
10.09.2019 24/24 http://www.judis.nic.in