Madras High Court
M/S.P.S.Constructions Rep. By Its vs The Chief Engineer (Highways) on 18 April, 2018
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.04.2018 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH Original Petition No.387 of 2010 M/s.P.S.Constructions rep. by its Managing Partner S.Harikumar .. Petitioner Vs. 1.The Chief Engineer (Highways), Nabard and Rural Roads, 3rd Floor, Survey of India Building, Thiru.Vi.Ka. Electronics, Guindy, Chennai - 32. 2.The Superintending Engineer (Highways), Nabard and Rural Roads, Salem Circle, Salem - 636 007. 3.The Divisional Engineer (Highways), NABARD & Rural Roads Division, Tirchy Main Road, Coimbatore - 18. 4.M.Ravindran, Sole Arbitrator. .. Respondents Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the Award dated 15.02.2010. For Petitioner : Mr.Amalraj S.Penikilapati For Respondents : Mr.M.Venkadesh Kumar, Govt. Advocate (CS) for R1 to R3 ORDER
Challenging the award dated 15.02.2010, the claimant has filed the present original petition.
2.Respondents 1 to 3 called for tenders for the work of forming of high level bridge and approach road across Aliyar river. The petitioner took the tender in the fourth call and was awarded contract work on 10.10.2005. An agreement was entered into in Agreement No.101/2005-2006 on 16.11.2005. The petitioner was given a period of 15 months to complete the work from the date of handing over the site.
3.The petitioner started the work in the month of April 2006. After giving one extension, the contract was terminated, preceded by the show cause notice, which was not replied to.
4.The petitioner challenged the order of termination before this Court. The writ petition as well as writ appeal is dismissed. Thereafter, on an order passed under Section 11 of the Arbitration and Conciliation Act, 1996, the learned Arbitrator was appointed.
5.The petitioner raised four claims before the learned Arbitrator. Two of the claims are with respect to the relief of declaration of contract as frustrated and the termination under the risk and cost is illegal. Claim No.3 is with respect to refund of earnest money deposit and Claim No.4 is the consequent one seeking interest and cost of the arbitration.
6.The learned Arbitrator went into all the issues and held that the claims made are not sustainable. Challenging the same, the present original petition has been filed.
7.Learned counsel appearing for the petitioner would submit that the issue pertaining to frustration of contract and the defects available in the technical analysis leading to the execution of the agreement have not been considered properly. Even the subsequent contractor could not complete the work. Thus the award will require interference.
8.Learned Government Advocate appearing for respondents 1 to 3 would submit that the issue sought to be raised, being factual, cannot be adjudicated under Section 34 of the Arbitration and Conciliation Act, 1996. The contention of the petitioner that the estimate was low was not accepted by the learned Arbitrator as it was never forced upon him. Secondly, the factual contention that there is a frustration of contract and the same could never be completed was also rejected on facts. On the contrary, the learned Arbitrator has given a factual finding on the performance of the petitioner. Thus no interference is required.
9.A perusal of the award would show that it is a speaking one. The petitioner voluntarily entered into the contract. The fact that on earlier three occasions there was no bidder cannot be a ground to hold that the doctrine of frustration will have to be made applicable. The learned Arbitrator has given a factual finding that the petitioner could only complete 2% of the contract within the time granted originally is not denied or disputed. The petitioner was given an extension. He did not raise this plea at that point of time. He was aware of the ground reality. The averment raised on the impossibility of the contract was considered and rejected with specific reference to the flood and rain as well as terrain. When once a finding is given that the petitioner was not ready with men and machinery to preform the contract, nothing else is required to be looked into. We are dealing with the case in which the petitioner did not even care to reply to the show cause notice issued. Thus, this Court does not find any error in the award passed by the learned Arbitrator. Accordingly, the original petition is dismissed. No costs.
18.04.2018
Index:Yes/No
mmi
M.M.SUNDRESH,J. mmi
O.P.No.387 of 2010
18.04.2018