Madras High Court
Union Of India vs M/S. Atlanta Limited on 20 July, 2010
Author: Prabha Sridevan
Bench: Prabha Sridevan, G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 20-07-2010
CORAM:
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN
AND
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
O.S.A.No.177 of 2009
and
M.P.No.1 of 2010
Union of India
Rep. by the Chief Engineer
Madras Zone, Island Grounds
Chennai 600 009 Appellant
Vs.
1. M/s. Atlanta Limited
Atlanta B-22, V.M. Road
Vile Parle (West) Mumbai 400 049
2. Mr. Justice P.R. Gokulakrishnan (Retd.)
Sole Arbitrator
Former Chief Justice of Gujarat
No.14, Anna Avenue, Bakthavatchalam Nagar Extn
Adar, Chennai 600 020 Respondents
For appellant :: Mr. M. Ravindran, Addl. Solicitor General
Assisted by Mr. A. Muralidharan, SCGSC
For respondents :: Mr. B.T. Seshadri for R1
R2- Arbitrator
Original Side Appeal against the order passed by this Court in O.P.No.663 of 1999 dated 19-01-2009
JUDGMENT
(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.) The appellant entered into a contract with the claimant herein for construction of runway and allied works at Naval Air Station, Arakkonam (Works in short). The contract provided for an arbitration clause. The dispute arose between the parties. One might say that the claimant laid the foundation for the dispute right from day one. An award was passed on 24-06-1999 for a sum of Rs.14,12,50,907.50p together with interest. The counter claim filed by the appellant was dismissed. The appellant therefore, moved an application under Section 34 of the Arbitration Act. It was dismissed and therefore, this appeal has been filed. The appellant will be referred to as the appellant and the respondent as the claimant.
2. The contract was entered into on 16-11-1988. The value of the contract was Rs.19,58,94,190/-. The time for completion was 21 months. The date of handing over of site was 24-11-1988. The date of commencement of work was 24-11-1988 and the date of completion work was agreed to be 23-08-1990. However, by periodic extensions which were granted time was extended up to 04-03-1992. According to the claimant because the site was full of slush, he wanted the date of the commencement to be reckoned from 01-01-1989. There were incessant rains and there were periodic changes made by the appellant, in fact some changes were made as late as August 1991 and January 1992, the supply of petroleum products were affected due to Gulf crisis all of which were reasons for extension of time, to be granted for a further period. Therefore, according to the claimant it was an illegal termination of contract, since the extension of time granted upto 31-03-1991 was not adequate or commensurate with the requirement of the claimant. The claimant contended they were entitled to escalation of labour charges. According to the claim, the calculation made by the appellant for the surface area excavation and the actual excavation was wrong. According to the claimant, the contract agreement dealt with existing ground levels and therefore, computation should be made according to that. The appellant had initially made payment as per the correct calculation, thereafter made a deduction to the detriment of the contractor because the Accepting Officer reviewed the earlier decision. According to the claimant, they were entitled to payment for the work done in cutting and filling LCN 5 which was extra work not contemplated in the contract. This relates to rate for extra work of earthwork beyond lip cutting. According to the claimant, the plan site was changed which resulted in extra expenditure in moving the machinery from the changed site to the place of operation. Though the claimant had the machineries required to perform the contract the appellant insisted upon procurement of certain other machineries which resulted in extra cost and on that head there was a claim. The machineries that were used by the claimant-contractor were illegally retained by the appellant contrary to Clause 34 read with Clause 54 in the conditions of the contract and the machineries also became worthless and therefore, the contractor made a claim both for value of machineries and idle hire charges. There was a claim for settlement of final bill and also for interest for pre-reference, pendente lite and post award periods.
3. According to the appellant, without any justification, the claimant requested the commencement of the contract to be fixed from 01-01-1989, when he had already entered upon the site and the reason for change on the ground that the soil was slushy was not justifiable. Whenever the claimant asked for extension it was given immediately and the clause relating to extension of time makes it clear that it is not arbitrable and therefore, this claim fell within the excepted matters. According to the appellant, the service area escalation is governed by Clause 3.2.2 where the payment is made on the basis of the square metre calculation and the deep excavation made as per Clause 3.2.5 where the calculation is made in accordance with cubic metre. According to the appellant, there was a mistake in calculation initially; it was made clear that the calculation can be made only in accordance with 3.2.2 and 3.2.5 and there cannot be double payment.
4. As regards the claim for cutting and filling LCN 5, the case of the appellant is that the contract required the runway to be free of water logging and whatever had to be done was a part of the contract. No specific work order was issued for cutting the LCN 5 upto sub-base-level and to fill it and therefore, no claim can be made as though it was extra work.
5. As regards the computation of labour escalation it was contended that it is governed by Clause 18.2.6 and any interpretation of these clauses is not arbitrable.
6. As regards change in location of plant site, the case of the appellant is that the plants site was only a shed and the machineries could not have been housed in those sheds and therefore, the contention of the contractor that he had to move those machines from the shed to the site is far-fetched and cannot be accepted.
7. As regards purchase of machinery, it was contended that when he applied for the contract, the contractor indicated that these machineries were in his possession and therefore, it is totally unjustified to claim any amount contending that he had to incur extra cost to hire machinery.
8. As regards the claim made for value of machinery and hiring charges it was submitted that in this particular case, there were several orders of various Division Benches of the Court which gave instructions to the claimant to remove the machinery and if the claimant did not remove it, it was the claimants own fault. According to the appellant, the claimant is not entitled to interest at the rate awarded.
9. Briefly these were the issues argued before us. The claimant had not challenged the Arbitrators rejection of various other heads of claim.
10. As many as 33 issues were framed by the learned Arbitrator. But here we are concerned with only the following issues:
1. What were the causes and which party was responsible for non-completion of the work within the time stipulated for its completion including the extended time?
2. Whether the extension of time granted upto 31.3.1992 was adequate and commensurate with the delays caused by the factors considered in issue No.1 above?
3. Whether the termination of the contract by the respondent was wrongful and illegal as stated by the claimant?
4. What is the correct interpretation of the provision of the agreement in respect of excavation over areas in hard/dense soil provided in Sl.No.4 of Schedule A of the agreement and as to how the rates for such excavation have to be calculated regarding item 1 in Claim No.1 of the claimants statement of claims?
4(a) Is the respondent estopped from changing the decision of the Garrison Engineer and also its confirmation by its Accepting Officer in respect of item 1 in claim No.1?
4(b) Is the claimant entitled to receive an additional sum of Rs.21,36,545.20 as claimed in item 1 of claim No.1?
4(c) Is the claimant entitled to a sum of Rs.4,77,314.62 for the escalation of the labour charges, Rs.91,060.62 for the escalation charges of the materials and Rs.2,289.16 for the escalation in respect of fuel charges for the claim in item 1 in claim No.1?
4(d) Is the claimant entitled to claim interest from 17th April 1990 till the date of payment of the amount he claims in respect of item No.1 in claim No.1?
11. Is the claimant entitled to the money amounting to Rs.5,57,19,445.02 withheld due to erroneous computation of escalation in the labour cost payment due under agreed terms as claimed in item 8 of claim No.1?
11(a). Is this claim not arbitrable as contended by the respondent?
14. Whether the contract indicated any location for plant site?
14(a). If there is any change in the location of the plant site, is the claimant entitled to the sum of Rs.3,15,01,479.42 as claimed in item 1 of claim No.2 on that count?
..
16. Was the use of the machineries mentioned in Items 3(a), (B) and (C) by the claimant due to their own volition in order to achieve the quality of the work as per the contract and if not so whether they are entitled to the claim they have made in items 3(a), (b) and (c) amounting to Rs.1,37,17,375.30?
17. Is the claimant entitled to Rs.25,45,88,460.40 for the loss of his overheads and profit, loss of idle hire charges of machinery and equipment, loss on account of missing parts, loss suffered due to wrongful and illegal encashment of Bank Guarantee and for compensation of extra expenditure incurred due to price rise during the extended period as claimed in his Claim No.3?
17(a). Is the claimant entitled to the amount claimed by him in Claim No.3(a), (B) and (d) since these amounts claimed are for the work done during the extended period?
17(b). Did the claimant suffer a loss of Rs.85,00,000/- due to wrongful and illegal encashment of Bank Guarantee as claimed in claim 3(c); If yes, to what relief?
18. Is the claimant entitled to Rs.1,39,40,647.52 in settlement of final and the past interest on the final bill with effect from 1-1-1993 upto 6-11-1995 at the rate of 18% per annum which amount works to Rs.73,56,479-70 and in all the alleged final bill totaling to Rs.2,12,97,127.22 as claimed in claim No.4?
32. Is the respondent entitled to interest past, pendente lite and future as claimed by him in claim No.14? Mr. M. Ravindran, learned Additional Solicitor General appearing for the appellant and Mr. B.T. Seshadri, learned counsel for claimant made their oral submissions and also filed written submissions. They cited judgments to support their case.
11. First we will refer to the cited judgments. The learned Additional Solicitor General relied on the following judgments:
(i) 1999 (9)SCC 283(Rajasthan State Mines & Minerals Ltd., Vs. Eastern Engineering Enterprises) In this case, the parties entered into an agreement on a turnkey basis for excavation, removal, transportation etc., at the specified dump yards in the DBlock of the Jhamarkotra Mines. The matter went to arbitration. The proceedings are governed by the 1940 Act. The District Judge made the award the rule of Court.
22. Further, in the present case, there is no question of interpretation of clauses 17 and 18 as the said clauses are so clear and unambiguous that they do not require any interpretation. It is both, in positive and negative terms by providing that the contractor shall be paid rates as fixed and that he shall not be entitled to extra payment or further payment for any ground whatsoever except as mentioned therein. The rates agreed were firm, fixed and binding irrespective of any fall or rise in the cost of the work covered by the contract or for any other reason or any ground whatsoever. It is specifically agreed that the contractor will not be entitled or justified in raising any claim or dispute because of increase in cost of expenses on any ground whatsoever. By ignoring the said terms, the arbitrator has travelled beyond his jurisdiction as his existence depends upon the agreement and his function is to act within the limits of the said agreement. This deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part but it may tantamount to mala fide action.
44. From the resume of the aforesaid decisions it can be said that: The Supreme Court drew up certain guidelines:
(h) The award made by the arbitrator disregarding the terms of the reference or the arbitration agreement or the terms of the contract would be a jurisdictional error which requires ultimately to be decided by the court. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of specific bar stipulated by the parties in the agreement, that claim could not be raised. Even if it is raised and referred to arbitration because of wider arbitration clause such claim amount cannot be awarded as agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. This aspect is absolutely made clear in Continental Construction Co. Ltd. (supra) by relying upon the following passage from M/s. Alopi Parshad v. Union of India MANU/SC/0114/1988 : [1988]3SCR103 which is to the following effect:
There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered. The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.
(j) The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable; the arbitrator is a tribunal selected by the parties to decide the disputes according to law.
(ii) 1999 (8) SCC 122 (Steel Authority of India Ltd., Vs. J.C. Budharaja, Government and Mining Contractor) This case also arose under 1940 Act and this relates to the construction of a reservoir for the Megha Taburu Iron Ore Project. The matter went before the Arbitrators. The Supreme Court held that the arbitrators existence on the agreement and he must act within the limits of the said agreement and cannot ignore the law to do what he thinks is just and reasonable.
17. It is to be reiterated that to find out whether the arbitrator has travelled beyond his jurisdiction and acted beyond the terms of the agreement between the parties, agreement is required to be looked into. It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases where there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction. Whether the arbitrator has acted beyond the terms of the contract or has travelled beyond his jurisdiction would depend upon facts, which however would be jurisdictional facts, and are required to be gone into by the court. Arbitrator may have jurisdiction to entertain claim and yet he may not have jurisdiction to pass award for particular items in view of the prohibition contained in the contract and, in such cases, it would be a jurisdictional error. For this limited purpose reference to the terms of the contract is a must. Dealing with similar question this Court in New India Civil Erectors (P) Ltd. v. Oil and Natural Gas Corporation, MANU/SC/0221/1997 : [1997]2SCR86 held thus:
It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account.
(iii) 1999 (4) SCC 491 (Food Corporation of India Vs. Sreekanth Transport) This case dealt with the legality of adjudication of excepted matters. The Supreme Court observed that any Government or Governmental agencies contract. Some matters are excluded from the purview of arbitration and the agreement records that the decision of a Senior Officer, being the adjudicator, shall be final and binding. This is what is popularly known as Excepted matters.
2. At the outset, it is pertinent to note that in the usual Governmental contracts, the reference to which would be made immediately hereafter, there is exclusion of some matters from the purview of arbitration and a senior officer of the Department usually is given the authority and power to adjudicate the same. The clause itself records that the decision of the senior officer, being the adjudicator, shall be final and binding between the parties - this is what popularly known as 'excepted matters' in a Government or Governmental agencies' contract.
3. 'Excepted matters' obviously, as the parties agreed, do not require any further adjudication since the agreement itself provides a named adjudicator - concurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the contract by the parties and this is where the courts have found out lacking in its jurisdiction to entertain an application for reference to arbitration as regards the disputes arising therefrom and it has been the consistent view that in the event the claims arising within the ambit of excepted matters, question of assumption of jurisdiction of any arbitrator either with or without the intervention of the court would not arise; The parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters: what are these exceptions however are questions of fact and usually mentioned in the contract documents and forms part of the agreement as such there is no ambiguity in the matter of adjudication of these specialised matters and termed in the agreement as the excepted matters.
(iv) AIR 1991 SC 957(M/s. Prabartak Commercial Corporation Ltd., Vs. The Chief Administrator Dandakaranya Project) This case deals with clauses relating to dispute over rates of payment whether the agreement was that the decision of the Superintending Engineer was final. The Supreme Court held that the dispute regarding rates is not arbitrable; the reference and the award is without jurisdiction.
(v) 2007 (4) SCC 697 (Food Corporation of India Vs. Chandu Construction and another) 12. In this context, a reference can usefully be made to the observations of this Court in Alopi Parshad and Sons, Ltd. v. Union of India MANU/SC/0057/1960 : [1960]2SCR793 , wherein it was observed that the Indian Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The Court went on to say that in India, in the codified law of contracts, there is nothing which justifies the view that a change of circumstances, "completely outside the contemplation of parties" at the time when the contract was entered into will justify a Court, while holding the parties bound by the contract, in departing from the express terms thereof. Similarly, in The Naihati Jute Mills Ltd. v. Khyaliram Jagannath MANU/SC/0348/1967 : [1968]1SCR821 , this Court had observed that where there is an express term, the Court cannot find, on construction of the contract, an implied term inconsistent with such express term.
13. In Continental Construction Co. Ltd. v. State of Madhya Pradesh MANU/SC/0114/1988 : [1988]3SCR103 , it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.
(vi) The respondents relied on 2001 (5) SCC 691 where the Supreme Court held that if the Arbitrator took a view which was plausible then Courts cannot interfere unless view of arbitrator is vitiated by a manifest error or is wholly improbable or perverse.
(vii) 2003 (7) SCC 396(State of U.P. Vs. Allied Constructions) In this case the contractor made a claim on account of loss sustained due to flooding of the work area. It was contended that in view of the force majeure clause no claim can be made. The Supreme Court held that since there was no evidence led before the Arbitrator that the rain unprecedented and that is why the loss was sustained such finding of facts cannot be interfered with.
(viii) 2004 (5) SCC 109 (Bharat Coking Coal Ltd. Vs. L.K. Ahuja) Here again, the Supreme Court held that once the Arbitrator has applied the mind to the pleadings and the evidence adduced before him, the Court cannot reappraise the matter as if it is an appeal.
The contention put forth on behalf of the appellant that there is absolutely no material to make a claim by the contractor in this regard cannot be accepted because these extra items have been mentioned in the measurement book and which clearly indicated that the work had been executed and he treated that the entry in the measurement book will itself amount to order in writing in terms of clause 11 of the agreement and, therefore, allowed the claim. In these circumstances, it cannot be said that the item claimed for extra works referred to in the final bill is the same as the claim under claim No.6 for extra works wherever such a situation has arisen the arbitrator has examined the same, say for example, in regard to petrol, oil and lubricant, he has separately, treated the same. If appropriate pleadings had been raised, the arbitrator would have certainly considered this aspect and in the absence of the same we think that the view taken by the arbitrator in this regard cannot be interfered. Only two items which had been allowed by the arbitrator which have been adverted to by us as a sum of Rs.49,513.02 which was still to be paid and a sum of Rs.91,013.72 as extra items of works which was disclosed in the measurement book. Therefore, we find no infirmity on this aspect of the claim.
(ix) 2005 (6) SCC 462 (Bhagawathi Oxygen Ltd., Vs. Hindustan Copper Ltd.) 36. The last question relates to payment of interest. The Arbitrator awarded interest to BOL at the universal rate of eighteen per cent for all the three stages, pre-reference period, pendente lite and post award period. It is not disputed that in the arbitration agreement there is no provision for payment of interest. The learned single Judge as well as the Division Bench were right in observing that the Arbitrator, in the facts and circumstances, could have awarded interest. The Arbitrator had granted interest at the rate of eighteen per cent on the ground of loan so advanced by HCL to BOL at that rate.
41. In view of the aforesaid decisions, we hold that it was within the power of Arbitrator to award interest. As to the rate of interest, the contention of HCL is that it ought to have been at the rate of six per cent only. The learned counsel for HCL has strongly relied upon the decision of this Court in Nav Bharat Construction Co. In that case, interest was awarded by the Arbitrator at the rate of fifteen per cent. The said action was challenged by the State Government as well as the Contractor. The contention of the State Government was that the Arbitrator could not have awarded interest at the rate of fifteen per cent and it was exorbitant. The Contractor, on the other hand, urged that interest ought to have awarded at the rate of eighteen per cent. This Court held that it would be appropriate if interest at the rate of six per cent is awarded.
42. In our view, however, a relevant and germane factor weighed with the Arbitrator in awarding eighteen per cent interest that at that rate HCL had given advance to BOL. In view of the said circumstance, in our opinion, even that part of the award passed by the Arbitrator did not deserve interference and learned single Judge and the Division Bench were not right in reducing the rate of interest.
(x) 2009 (12) Scale 567 (State Through Central Bureau of Investigation Vs. Parmeshwaran Subramani & Anr.) 6. We have heard counsel for the parties and we have perused the award. The award runs into considerable detail as it is a speaking award. While dealing with this part of the claim, the arbitrator in paragraph 5.11, 5.12 and 5.13 of the award has given detailed reasons. We are of the view that the settled position in law is that Court should not substitute its own view for the view taken by the arbitrator while dealing with the proceedings for setting aside an award. It is equally well settled, where the arbitrator acts within jurisdiction, 'the reasonableness of the reasons' given by the arbitrator is not open to scrutiny by Courts. However, if the reasons are such as no person of ordinary prudence can ever approve of them or if the reasons are so 'outrageous in their defiance of logic' that they shock the conscience of the Court, then it is a different situation. And in an appropriate case the Court may interfere. However, the degree of such unreasonableness must be greater than the standard in a certiorari proceeding. We find that the arbitrator in this case has reached a finding of fact on the materials on record about the delay on the part of the respondent and it has also been held by the arbitrator that because of such delay the claimant was put in great difficulty in completing the work in time. It is nobody's case that by doing so the arbitrator has acted beyond his jurisdiction or committed any legal misconduct.
(xi) 2001 (8) SCC 482 (Maharashtra State Electricity Board V. Sterilite Industries (India) and another) 12. In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned counsel for the petitioners in the instant case is patent on the face of the award neither the High Court no this Court can interfere with the award. The exercise to be done by examining clause 14(ii) of the contract entered into between the parties, construing the same properly and thereafter applying the law to it to come to a conclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the context of the terms and conditions of a contract, a stipulation in the form and nature of clause 14(ii) operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is not patently absurd or wholly unreasonable, there is not scope for interference by courts dealing with a challenge to the award. Therefore, we think, the view taken by the High Court in this matter is correct and calls for no interference.
12. We are grouping the heads of claim as follows:
We will deal first with the claims where we are interfering with the award of the Arbitrator and then we will deal with the claims where we are confirming the award of the Arbitrator and finally we will deal with the issue of interest where the learned Judge has reduced the rate of interest awarded. The two issues which warrant interference are where the Arbitrator has dealt with the excepted matters on the ground that it is because he felt it was reasonable and the other where he granted a claim notwithstanding orders of this Court on the ground that it is just and equitable and particularly, where he had awarded an amount which was virtually a replication of another claim.
13.(I) Now we come to the question of extension of time and the question whether the termination was illegal. The commencement of work was agreed to be 24-11-1988 and the date of completion was 23-08-1990. However, even in December 1988, the claimant made a request that the start of work should be commenced from 01-01-1989. The reason given for this postponement of the date of commencement of the contract was that the site was virtually waterlogged. According to the claimant, the work diary would also show that the weather was not clear and since his request for reckoning the date of commencement was not granted, the period from 24-11-1988 to 31-12-1988 has to be added for deciding the date for work. The claimant further contended that the second cause for delay was suspension of excavation work. When the work was in progress by order in Ex-C163, the appellant asked the claimant to suspend surface excavation work in cut portion. Therefore, this work was suspended from 22-12-1988 and on 10-01-1989 when the claimant reminded the appellant, the appellant by Ex-C13 dated 19-01-1989 instructed the claimant to go-ahead and this delay comes to 29 days and this period also had to be added when the question of extension of work is considered. Another cause for delay cited by the claimant is that the supply of petrol products was adversely affected by the Gulf Crisis and that the appellant had undertaken to supply the petroleum products unreasonably, unilaterally and abruptly they stopped the supply of petroleum products from 8th June 1991. The other reason why there was delay is that the appellant wanted to commence the inauguration of the runway by the President of India and for that reason, the claimants operating staff and labourers were forcibly removed and restrictions were imposed and entry passes were not given and this restriction on the entry was subsequent to the order by which the time was finally extended by the appellant till 31-03-1992. Several deviation orders were also issued for which no time was granted.
(a) According to the appellant, as soon as the site was handed over they entered the site and work was started. The work diary would reveal that. The learned Arbitrator took note of the entries in the work diary. So, there was no justification to ask for commencement of work from 01-01-1989.
(b) As regards the alleged suspension of work, it was contended before the Arbitrator that there was no suspension and in any event, this was only for a small part of the site. As regards the other areas the work could go on and by the letter dated 19-01-1989 the appellant had made it clear to the respondent that they had already given instructions to re-commence work. Therefore, this was not a justification to ask for extension of time.
(c) As regards the stoppage of work during the President Visit it was submitted that soon after the visit passes were issued and it was only the respondent who did not resume work.
(d) As regards the alleged deviation, it was submitted that even in the deviation order it was made clear that this would fall within the time already stipulated and no extra time was required.
(e) As regards the supply of petroleum product, according the appellant by mutual consent and amendment to the original contract was made with regard to supply of fuel and lubricants and therefore, it was the respondent to purchase fuel from the market and therefore, the appellant was supplying the products upto June 1991.
(f) The Arbitrator held against the appellant on all counts, the Arbitrator was of the opinion that the commencement of the project ought to have been postponed. For the stoppage of work, there was no proportionate grant of time; that it was the appellant who arbitrarily and unilaterally stopped supply of petroleum products; that the stoppage of work on the visit of President had to be compensated; that all the deviations that were made required additional time and that the appellant had not applied his mind to the time sought for by the respondent and had granted piecemeal extension. In fact, the Arbitrator was of the firm opinion that actually the appellant ought to have extended the completion date upto 31-05-1993. The Arbitrator went into this question in spite of the objection of the respondent that the grant of extension of time was not arbitrable. According to the Arbitrator, even genuine requests for extension of time were not granted and it is only because of this that the respondent was not able to complete the work on time.
(g) The learned Additional Solicitor General submitted that in the first place this was an excepted matter and the Arbitrator could not have gone into it at all. As regards the time that should be granted the Accepting Authoritys conclusion is final and binding. The learned Additional Solicitor General submitted that as and when the respondent asked for time, time was granted and totally the project was extended from 23-08-1990. It was extended upto 31-03-1992 and therefore, it cannot be said that adequate and commensurate extension was not given and in any event, it is only the decision of the Accepting Authority to go into these issues. As regards each and every reason that was given by the Arbitrator the learned Additional Solicitor General submitted that it would be possible to demonstrate from the perusal of the work diary that except for a few days, the period from 24-11-1998 and 31-12-1998 were all not rainy days. In fact, the respondent entered upon the site mobilized his personnel and started working. The date of commencement of work was fixed taking into account time required for mobilization of machines and personnel. So, further time cannot be given.
(h) As regards the suspension of work on 22-12-2008, the Engineer-in-Charge had given instructions to stop work of surface extension in the cut portion immediately and ensure that no surface extension is done in the cut portion in future. The Engineer-in-Charge has also noted on the same day that surface excavation on cut portion was stopped. On 10-01-1989, the respondent had written to the appellant that the area in question contains vegetation and other materials not suitable for incorporation in embankment and therefore, it is necessary to proceed with the surface excavation of the cut portion. On 19-01-1989, the appellant had written a communication that regarding surface excavation you were directed subsequently to go ahead with the work. Therefore, according to the learned Additional Solicitor General already directions had been given for him to go ahead with the work. As regards additional work that was given on 21-01-1992 the changes have been ordered and where it is specified that the time effect of the above changes are Nil. On 28th January 1992 by Ex-C23, the claimant had indicated that more time would be required.
(i) As regards the claim made for petroleum, the learned Additional Solicitor General referred to Ex-C45, referring to amendment No.1 that no claim whatsoever on account of supply of POL products will be entertained.
(j) As regards Presidents visit, the learned Additional Solicitor General submitted that only for 3 days the work was halted and thereafter, passes were issued, but the respondent did not report to work. According to the learned Additional Solicitor General, right from the beginning the conduct of the respondent was only to drag on the matter and hinder the project.
(k) The learned counsel appearing for the respondent submitted that while the clause of the agreement had referred to the extension of time shall be final and binding when the materials before the Arbitrator to demonstrate that the requests of the respondent for extension of time on specific heads was not considered and when the procedure prescribed is not adopted, then the Arbitrator was entitled to go into that question and give a finding, and once the Arbitrator found that the extension of time was not sufficient then automatically what followed was the termination of contract was illegal. The learned counsel submitted that while it is true that at the time of entering the agreement the respondent had agreed to 24-12-1988 being the date of commencement of the contract, it is known to all that it is the monsoon season and it was well-nigh impossible for the respondent to enter on the side and commence the work. The entries in the work diary that the respondent had entered site may not mean that the work had started in earnest and in any event this evidence was taken note of by the Arbitrator and a finding had been given and this Court cannot sit in appeal over it.
(l) The learned counsel submit that it is not open to the appellant to make a distinction of suspension of work and stoppage of work and whether it is one portion or the entire site. The condition of the contract contemplate extension of time both whether there is total suspension of work and whether there is partial suspension of work and therefore, the Arbitrator had rightly taken note of this. The learned counsel submitted that even assuming without admitting that the grant of time upto 31-03-1992 was adequate, the fact that there was stoppage of work for three days thereafter for the Presidents visit and deviations were belatedly given were factors that were rightly taken note of by the Arbitrator. The learned counsel submitted that the Gulf crisis virtually paralyzed petroleum supply and it was the duty of the appellant to supply petroleum products. Since they unjustifiably withdrew the supply there was delay.
(m) The relevant conditions of the contract for deciding these issues are:
Condition No.11 which deals with time, delay and extension; Condition No.9 which deals with suspension of works where the suspension of work was for reasons other than the default of the contractor or safety of the works then the contract provides for the manner in which extension of time should be granted and 9b reads thus:
If the suspension is ordered for reasons (ii) and (iii) in Sub-para (a) above:
(i) the Contractor shall be entitled to an extension of time equal to the period of every such suspension plus 25%, for completion of the item or group of items of work for which a separate period of completion is specified in the Contract and of which the suspended work forms a part, and
(ii) if the total period of all suspensions in respect of an item or group of items of work for which a separate period of completion is specified in the Contract exceeds 60 days, the Contractor shall, in addition, be entitled to compensation, as the Garrison Engineer may on the basis of facts consider reasonable, in respect of salaries and/or wages paid by the Contractor to his employees and labour at Site actually remaining idle during the period of suspension.
Here, specific attention may be given to the clause relating to the duty of the Contractor to intimate by writing the happening of any event causing delay.
11. Time, Delay and Extension (A)Time is the essence of the Contract and is specified in the contract documents or in each individual Works Order.
..It shall indicate the forecast of the dates of commencement and completion of the various trade processes or sections of the work, and shall be amended as may be required by agreement between the G.E.and the contractor within the limitation of the time imposed in the contract documents or Works Order. If the Work be delayed:-
(i) by force majeure or (ii) by reason of abnormally bad weather, or (iii) by reason of serious loss or damage by fire, or (iv) by reason of civil commotion, local combination of workmen, strike or lockout, affecting any of the trades employed on the work, or (v) by reason of delay on the part of nominated sub-contractors, or nominated suppliers which the Contractor has, in the opinion of G.E., taken all practicable steps to avoid, or reduce, or (vi) by reason of delay on the part of Contractors or tradesmen engaged by by Governmetn in executing works not forming part of the contract, or (vii) by reason of any other cause which in the absolute discretion of the Accepting Officer is beyond the Contractors control:
then, in any such case the Officer, hereinafter mentioned may make fair and reasonable extension in the completion dates of individual items or groups of items of Work for which separate periods of completion are mentioned in the contract documents or Works Order, as applicable.
Extension of time, as granted above, shall be communicate to the Contractor by G.E., in writing and shall be final and binding. PROVIDED THAT in the case of contracts (other than Terms Contracts) accepted by the G.E.,in the event of the Contractor not agreeing to the extension granted by the G.E., the matter shall be referred to the C.W.E., whose decision shall be final and binding.
(n) Right from 19-12-1988, the claimant has started his request for commencement of the project from 01-01-1989. Therefore, it is not as if he has commenced the work earnestly and thereafter, asked for time, which was not given. He has periodically made requests for grant of time and some of these letters are enclosed in the paper-book. One is Ex-C17 dated 17-09-1990. Again on 10-09-1991, they give reasons why they have not been able to complete the project on time and pray for extension of time. By letter dated 11-03-1991, proforma recommending extension of time has been given. In this, there is reference to details showing rainy days. By letter dated 23-03-1991 a communication is seen which shows that the extension of time are under scrutiny. By letter dated 08-04-1991, the respondent is informed that provisional extension of time has been given and on 20-04-1991, the appellant has referred to the reasons stated by the respondent and extension of time upto and including 30-06-1991 is granted. Then again, there is a letter written by the respondent. On 20-09-1991, the CWE has forwarded the proforma recommending extension of time. In fact there is interdepartmental communication dated 29-11-1991 for expediting the order of extension of time. Then 29-11-1991, the list date of extension the appellant had stated as follows:
In view of the reasons stated in your above quoted letter under reference, extension of time upto and including 31 Mar 92 is hereby accorded in terms of condition 11 of IAFW-2249(General Conditions of Contracts). And below the signature the following words are follows:
Delay due to abnormal rains, extra earth work and break down of plants & machineries. These words are referred to by the respondent to show that all the reasons for which extension of time has to be granted were not at all been considered. The Arbitrator also virtually rewrites the contract because in his opinion it ought to have been extended to 31-05-1993.
(o) When we have already extracted the conditions of the contract which show that as regards extension of time which is the decision of the Accepting Authority is final if the appellant had not at all extended the time, there may be some interference. We find that it is admitted that an extension of 596 days have been given. As and when extension was sought for extension was given by the appellant. The learned Arbitrator refers to this as piecemeal extension, when in fact, the appellant had given it periodically.
(p) In this regard, we refer to the legality of the adjudication of excepted matters. The Supreme Court lays down the law in this regard in 1999 (4) SCC 490 (cited supra) which has already been extracted and which clearly shows that when the clause itself records that the decision of the Senior Officer being the adjudicator, shall be final and binding between the parties. Then the Arbitrator cannot assume jurisdiction in fact, the Supreme Court has observed that this question would not arise either with or without intervention of the Courts and this exceptions are mentioned in the contract and there is no ambiguity. How much time is required for executing the particular contract is something within the purview of the Adjudicating Authority. When the fact that it was an excepted matter was specifically brought to the knowledge of the Arbitrator the learned Arbitrator has brushed it aside and holds that this cannot be countenanced at all. In fact, the learned Arbitrator has referred to Exs-R146, R150 and observed that the department had found reasonableness in the extension of time. The Arbitrator has observed that the extension of time was not adequate and it was not commensurate and therefore, the extension ought to have been given in fact, till 1995. The observation that the order extending the time shows non-application of mind cannot be accepted. When the requests are made and extension is given we do not expect the Officer whose decision is final and binding to give reasons for every extension as though he is a Quasi-judicial-authority. In fact, the Arbitrator appears to have gone on the basis of what he felt was reasonable. He has observed that atleast 10 fortnights time should have been given for deploying sophisticated machinery and in fact it is reasonable to accept to the request made by the claimant. Accordingly, 10 fortnights ought to have been given. Therefore, every time, the claimant had made a claim giving some reasons the Arbitrator felt that it was reasonable and whatever time he had asked for ought to have been given.
(q) The Supreme Court in 1988 (3) SCR 103(cited supra) held that the Arbitrator must apply the law and cannot ignore it nor misapply it to it what he thinks as just and reasonable. The Arbitrator cannot award an amount which is ruled out by the agreement because of the specific bar and on facts, the appellant had granted extension of time which is almost 596 days and when the clause is clear that the decision regarding extension of time shall be final and binding. The Arbitrator strayed beyond the corners of the contract to hold that extension ought to have been granted till 1993. The Arbitrator cannot rewrite the terms of the contract. The award granted under this head is set aside.
(Emphasis supplied) II. Claim No.3:
(i) This relates to idle hire charges from 02-04-1992 to 23-12-1995 with interest from 24-12-1995 to 31-12-1999 and the value of tools and machinery:
(ii) The case of the claimant is that the appellant had illegally terminated the contract and the machinery that was hired by him remained in the site because the appellant retained it and it had virtually scrap value as revealed by the Surveyors Report. According to the claimant, though permission was granted by this Court for removal of the machinery since many of the machineries had parts missing, the respondent did not want to take the machineries away from the site without an inventory being taken. Though several requests were made, the appellant did not come forward to take the inventory, with the result, the machineries remained there and deteriorated to Nil value and this claim ought to be granted. The appellant however, would submit that the extension of time granted by the appellant was valid. We have already held in favour of the appellant with regard to extension of time and illegal termination. In any event, the claimant having moved the Court for removal of machineries and a Surveyor had given a Report which was accepted by this Court, and when there is an order to the effect that the claimant had in fact removed some of the very valuable machinery this claim is purely unconscionable and cannot be granted. The learned Arbitrator had come to the conclusion that the termination was illegal and the time granted was insufficient and therefore, the Condition No.54 of the General condition of Contract could not have been complied. Since the contract was terminated for reasons other than the contract of the Contractor, the Contractor had removed the tools from the site as per Condition No.34 the Garrison Engineer did not permit him to remove it. The learned Arbitrator thereafter, took note of the various orders passed by this Court and held that, the claimant may be correct in not taking the machineries without taking inventory, since, according to the claimants many parts of the machineries were missing and many of the machineries and tools were in a damaged condition.
(iii) The learned Arbitrator accepted the report given by the valuer, Mr. Rajagopalan, who had assisted this Court, and held that if the respondent did not allow to take the machineries and had been given possession, he could have used that for his projects or hired them to others and would have made necessary repairs and adjustments. But, since the appellant did not return the machineries the claimant both in equity and also on actual state of affairs he is entitled to idle hire charges and the Arbitrator also held that, Both on justice and equity and also from the fact that the provisions of the General conditions of contract give right to the respondent to make use of the machineries upto till the contract was over, the respondent is entitled to idle hire charges. The Arbitrator awarded the charges claimed by the respondent and the value of the tools and machineries and interest from specific dates which were dependant on his finding that the termination of the contract is illegal.
(iv) The learned Additional Solicitor General submitted that right from day one, the respondent had adopted a non-co-operative attitude and had presumably decided that he would go for arbitration and his attitude through out the project would reveal this. The learned Additional Solicitor General submitted that when the various Division Benches of this Court had atleast on four occasions passed orders permitting the respondent to remove the machinery, which was accepted by him without any challenge, this insistence upon the inventory is only projected to make exorbitant claim before the Arbitrator. The learned Additional Solicitor General submitted that while it cannot be denied the appellant asserted that they had the right to retain the equipment once the order was passed, they had abided by it. The learned Additional Solicitor General also pointed out to the order of this Court to show that the claimant had removed the machinery and had taken advantage of the order passed by this Court.
(v) The learned counsel appearing for the respondents submitted that machineries were lying in the open site and the report clearly showed that several parts were missing. It would have been a risk for the respondent to remove the machinery without an inventory being taken in the presence of both the parties and it is in these circumstances that the respondent insisted on the inventory being taken. The learned Arbitrator had seen the reasonableness in the attitude of the respondent and had come to the conclusion that the respondent could not have removed the machinery without an inventory being taken. The learned counsel submitted that it is true that orders have been passed for removal of machinery, but that would not mean that the respondent cannot insist on the safeguard of an inventory being taken. The learned counsel submitted that in any event that since the Arbitrator had felt that on the facts and circumstances this insistence was reasonable and acceptable and this Court cannot go into the question.
(vi) Section 54 of the General Conditions of Contract reads thus:
Cancellation of Contract in part or in full for Contractors Default If the Contractor-
(a) makes default in commencing the Works within a reasonable time from the date of the handling over the Site, and continues in that state after a reasonable notice from G.E., or
(b) in the opinion of the G.E., at any time, whether before or after the date or extended date for completion, makes default in proceeding with the Works, with due diligence and continues in that state after a reasonable notice from G.E., or
(c) fails to comply with any of the terms and conditions of the Contract, or after reasonable notice in writing, with orders properly issued thereunder, or
(d) fails to complete the Works, Work order and items of Works, with individual dates for completion, and clear the Site on or before the date of completion.
The Accepting Officer may, without prejudice to any other right or remedy which shall have accrued or shall accrue thereafter to Government, cancel the Contract as a whole or only such Work Order(s) or items of Work in default from the Contract. Whenever the Accepting Officer exercises his authority to cancel the Contract as a whole or in part under the Condition he may complete the Work by any means at Contractors risk and cost, provided always that in the event of the cost of completion or after alternative arrangements have been finalized by the Government to get the Works completed, estimated cost of completion (as certified by G.E.) being less than the Contract cost, the advantage shall accrue to the Government. If the cost of completion or after alternative arrangements have been finalised by the Government to get the Works completed, estimated cost of completion (as certified by G.E.)exceeds the moneys due to Contractor under this Contract, the Contractor shall either pay the excess amount ordered by G.E. or the same shall be recovered from the Contractor by other means. The Government shall also be at liberty to hold and retain in their hands materials, tackle, machinery, and stores of all kinds on Site, as they may think proper and may at any time sell any of the said materials, tackle, machinery, and stores and apply the proceeds of sale in or towards the satisfaction of any loss which may arise from the cancellation of the Contract as aforesaid.
The Government shall also be at liberty to use the materials, tackle, machinery and other stores on Site of the Contractor as they think proper in completing the work and the Contract will be allowed the necessary credit. The value of the materials and stores and the amount of credit to be allowed for tackle and machinery belonging to the Contractor and used by the Government in completing the work shall be assessed by the G.E. and the amount so assessed shall be final and binding.
In case the Government completes or decides to complete the Works or any part thereof under the provision of this Condition, the cost of such completion to be taken into account in determining the excess cost to be charged to the Contractor under this Condition shall consist of the cost or estimated cost (as certified by G.E.) of materials purchased or required to be purchased and/or the labour provided or required to be provided by the Government as also the cost of the Contractors materials used with an addition of such percentage to cover superintendence and establishment charges as may be decided by the C.W.E., whose decision shall be final and binding.
(vii) Now we will look at the orders passed by our Court.
(a) On 21-01-1993, the claimant obtained an order in C.M.P.No.17477 of 1992 in O.S.A.No.262 of 1992. The Schedule to the said application is a list of the machineries which are 15 in number. The prayer was for release of the machineries since the claimant will be obliged to pay hire charges to third parties without having the benefit of those machineries. Before this Court, the appellant herein contended that under the terms of the Contract, the machineries vest in them and the work had at this stage being entrusted to the Border Security Force and release of the machineries would cause serious prejudice. The Division Bench in order to find out the availability of the items of machinery and also their present condition appointed an Engineer and Insurance Surveyor, Thiru. S. Rajagopalan and asked him to file a report. Though the Schedule to the Application listed only 15 items of machinery, the report contained 21 items of machinery valued at about Rs.2,75,95,000/-. The Division Bench recorded that those machineries as found in the report of Rajagopalan are now available and their value is as stated in the report and not in dispute before us now. The Division Bench thereafter, considered what would be in the best interest of the parties. They took note of the fact that the machineries may deteriorate if left at the site and also of the inter se claims between the parties. At this stage, the respondent herein offered to furnish bank guarantee for the value of Rs.2,73,00,000/-. So the Bench viewed that it would be just and equitable to allow the respondent to remove the 21 items of machinery on furnishing bank guarantee or 2.73 crores. Upon the bank guarantee being furnished, the appellant was directed to allow the claimant and one Mr. Deepak R. Patel to enter the site and to remove all the 21 items of machinery. This order has become final.
(b) Then a petition was filed to extend the time granted in C.M.P.No.17477 of 1992 referred to supra for furnishing bank guarantee and four weeks time was granted.
(c) Then C.M.P.No.5820 of 1993 was filed where the Division Bench referred to the following items of machineries: 6(a) Hot mix plant No.2; 12(b) Terex 2Nos; 15. Vibromax 2 Nos.; 17. Pneumatic Tyred Roller; 18. Water Tanker Trucks; 19. Tractors 2 Nos.; 20. 16 Tippers ; 21. Generator Set 30 KVA. The claimant specified that these items which are valued at 95,000/- may be allowed to be removed on furnishing bank guarantee for Rs.95,95,000/-. The Division Bench felt that there was no harm in granting this relief and accordingly, this prayer was granted on 27-04-1993.
(d) Again another petition filed which is C.M.P.No.10214 of 1993 where a consent memo was filed recording the furnishing of bank guarantee.
(e) Then, other petitions C.M.P.No.655, 6526, 11871 and 11672 of 1993 were filed, where the First Bench had agreed to the machineries being released to third parties on the applications filed by them viz., P.N. Patil and Vikram R. Patil and the C.M.Ps. were ordered directing the Union of India to release the machineries belonging to them about which there is no dispute and in respect of which there is a list enclosed on their furnishing bank guarantee to be kept ready.
(viii) With regard to this issue, it is really not necessary for us to go into the terms of the contract. The orders of this Court are available before us. The Bench has recorded that the report shows the machineries that are available and the condition in which they were available and the value of such machinery. Though the claimant had listed only 15 items of machinery, this Court permitted the claimant to remove all the 21 items of machinery that were on the site. Though the appellant asserted before the Court that they have a right to retain the machineries, they have allowed this order to become final. Not only did the claimant accept the report and also the order by which they were directed to furnish bank guarantees for the value of Rs.2.73crores which was said to be the value of the machineries, they also moved an application selecting those machineries which they want to remove and assess the value of those machineries at value of Rs.95,95,000/- and prayed that the earlier order may be modified and they may be permitted to move the selected machineries and furnishing bank guarantee for the reduced amount of Rs.95,95,000/-. This prayer was also granted. Even at this time, the claimant did not submit before this Court that if the prayer is granted then they will remove it only after the appellant conducts an inventory. They have quietly removed whatever machineries they wanted. Undoubtedly, this Court granted permission to remove the machineries not only in favour of the respondent but also to third parties who impleaded themselves, where the respondent expressed its no objection to them removing the machineries.
(viii) When the orders were before the Arbitrator which were accepted by the claimant, without any demur, when no permission was sought for by the respondent before the five Division Benches, which heard the matters, that any permission granted by this Court should include and insist that inventory be taken in the presence of the appellant and the respondent, the Arbitrator clearly misconducted himself in observing that the respondent may be correct in not taking the machineries without inventory. The report of Mr. Rajagopalan, Ex-C131 is taken into account. Ex-C131 is itself is an inventory. The order of this Court has recorded that the machineries mentioned in the report are available. Therefore, there was no requirement that a further inventory should be taken. This Ex-C131 is accepted by both the parties. This is what the Division Bench has recorded. The learned Arbitrator has recorded that equity is in favour of the claimant. We fail to understand how.
(Emphasis supplied)
(x) In 2007 (4) SCC 697 (cited supra), the Supreme Court has referred to the observations in 1960 (2) SCR 793 (cited supra) and held that no claim can be made on vague pleas of equity. It is also well-settled that the Arbitrator is not a Conciliator, the Arbitrator has no inherent power, the Arbitrator is strictly a creature of the agreement and cannot travel beyond it. He could neither award any amount which is ruled out nor any amount which is prohibited nor in fact, any amount merely because he feels that it is equitable to award. In the present case, not less than 5 years have passed for removal of machineries as itemized in the report Ex-C131. To ask for an inventory again as unjustifiable. The learned Arbitrator totally ignored the orders of this Court as well as Ex-C131 on the ground that it was equitable to award this claim. In view of our finding on the first issue above, no award can be made under this head.
(xi) With regard to the value of tools and machinery when the Arbitrator had awarded idle hire charges for the same tools and machinery on the ground that they were idly standing there for no fault of the claimant awarding again an amount for the same tools and machineries would be duplication and therefore, this award is also set aside.
III. Claim No.2 Item 3(a) and (b): (a) Under this head, the claimants case in that he had to deploy sophisticated equipment resulting in extra cost and therefore, he is entitled to receive compensation. The claimant has given the particulars of the sophisticated machinery that he had deployed and the extra expenditure that he has incurred. According to him, at the instance of the appellant, he had inducted Auto Grade Slope Control Paver (AGSCP in short) in the place of Mechanical Paver and it is only because of the appellants letter Ex-C104 which expressly ordered the claimant to procure the AGSCP that he had used the machinery for which he is entitled to extra payment on monthly instalments at the rate of Rs.3,00,000/- as against the normal cost of Rs.42,000/- per month for Apollo Paver. The other machine that the claimant was required to procure was the Concrete Paver Finisher. According to the claimant, where alternative materials and processes are specified, the discretion shall vest with the contractor as per Clause 1.15 of the specifications and the contract agreement only specifies the use of screed and needle vibrator.
(b) In response, the appellants case is that Clause 7.4.14 and Clause 5.4 of the particular specifications clearly specified the machinery that had to be deployed. Further, according to the appellant, the claimant had given the list of plant and machinery in when he applied for the tender. Here the claimant had included these machineries and subsequently, he made an unacceptable claim, alleging that he had hired the machinery at a very high rate. The learned Additional Solicitor General referred to condition No.8.10.2.1 and submitted that when the condition is clear that the depositing and spreading should be done by means of self propelled mechanical paver, it is the duty of the claimant to procure that machinery and that is part of the contract and he cannot claim that he is entitled to any extra charges for procuring the machinery. According to the learned Additional Solicitor General, the AGSCP alone will automatically control the grade and slope in addition to the spreading and tamping done by the Apollo Paver, which cannot control the grade. By Ex-C104 dated 28-11-1988, this was informed to the respondent. The learned Additional Solicitor General also referred to condition 8.10.3.1 and submitted that this cannot be done by Apollo Paver and it requires AGSCP and this was also conveyed by the respondent by Ex-C106 and that the Arbitrator had totally ignored the conditions of the contract agreement.
(c) As regards the Concrete Paver Finisher, the learned Additional Solicitor General referred to condition No.7.14.1, 7.14.3 and 7.14.4. It was submitted that the agreement clearly excluded manual process and the claimant could only employ Mechanical process. The learned Additional Solicitor General submitted that it must be remembered that there cannot be any uneven surface, because the project was for construction of runway. The claimant had bid for the contract claiming that he had experience in it and showing certain documents that he had in his possession, various machineries, and it is only on the basis of this, that the claimants bid was conferred. Thereafter, the claimant cannot be heard to say that they had to hire these expensive machineries. Further, it was also submitted that Clause 1.15 referred to alternative materials and processes only and not machinery.
(d) According to the claimant, for complying with Clause 8.10.2 it is sufficient if Mechanical Paver Finisher is used and AGSCP may not be necessary. According to the learned counsel for the claimant, when he bid for the contract he had in his possession the machinery. But since, there was a lapse of time between the date on which he bid for the contract and the date on which he was awarded the contract the claimant had to deploy the machinery for other projects, since it could not be kept idle awaiting the award of the contract.
(e) As regards screed and needle vibrator, the respondent contended that it was only at the Meeting on 21-04-1989 it was specifically stated that the claimant has to use Spreader, Vibrator and Finisher Train instead of Screed and Needle Vibrator.
(f) Ex-R220 is the pre-qualification document submitted by the respondent where the respondent has claimed to be one of the leading contractor possessing sophisticated Hot Mix Plants, Paver Finisher, Concrete Weigh Batching Plant with automatic controls etc. Annexed to that letter, the respondent had given a list of plant and machinery, which include Apollo Brand Paver Finishers 7 Nos. And in the plant and equipment proposed to deployed by the Applicant for use on the work, he claimed that he had the Paver finisher. The Arbitrator was of the opinion that it is only because the appellant wanted to induct specified machinery that the respondent had incurred additional expenditure and while referring to Ex-R220, the Arbitrator was of the opinion that though the respondent had given the list of plant and machineries that he possesses since he had also other projects on hand, he is entitled to the claim. This would mean that even if the claimant had all the machineries in his possession he could claim that he had hired the machineries at the instance of the appellant.
(Emphasis supplied)
(g) As regards Variomatic High Density Screed Paver Finisher which the respondent claimed he had, the Arbitrator concluded that it was never intended to be used by the respondent and the Arbitrator was of the opinion that the Mechanical Paver was enough to carry on the contract work and that the AGSCP was inducted only on the direction of the appellant and therefore, the appellant was liable.
(h) Even as regards Paver Finisher, the Arbitrator was of the opinion that where there are two alternatives given, the contractor can choose anyone and since 7.14.4 of the Particular Specifications Section II of the Contract Agreement gives two alternatives i.e. one to do the work by Screed and Needle Vibrator and another by Paver Finisher. It was open to the claimant to choose whichever was suitable and therefore, the claim made by him was justified.
Condition No.8.10.2.1:
The mix shall be carried from the mixer by tipper truck to the place(s) of deposit and spreading done by means of self propelled mechanical paver with tamping and finishing the mix true to Grade, line and cross section. Condition 8.10.3.1 :
immediately after spreading, the mix shall be rolled with 8 to 10 tonne roller. At the time of rolling, the temerature of the laid mix shall be between 120 degrees Centigrade plus or minus 10 degrees Centigrade.
Condition No.7.14.1- Concrete shall be deposited and spread to such depth that when compacted and finished, it shall conform to the grade and cross section required and to ensure the thickness required Condition No.7.14.3:
Concrete shall be deposited in such a manner as to require as little handling as possible. Spreading, Compacting and Finishing shall be completed within a period of not exceeding 1 hour from the time the mixing starts. Condition No.7.14.4:
The manual labour operations were deleted in the condition as concrete may be spread by approved mechanical plant. Compaction may be carried out either mechanically by means of approved mechanical plant or manual labour employing needle and screed vibrators.
(i) This Court sitting in an appeal cannot interfere with the Arbitrators award and the Supreme Court has repeated held so. But in this case, while our hands are undoubtedly tied because of the scope of our jurisdiction under Section 30. We find that any project of this nature which is high security project because National Security is involved, the scrutiny of the claim must be stricter. The appellant claims that this is the quality that is required. We cannot argue with that. The appellants Engineers alone know how the runway should be laid. The claimant had bid for the contract as though he had in his possession of all the machinery. Then has made the huge claim contending that he had hired from outside the machineries. The Arbitrator has accepted that the claimant could have used it for other projects. We really feel that the appellant is justifiably aggrieved. We are unable to interfere only because equity has no place in this jurisdiction. The stand of the claimant, who has bid for such a contract and has resiled from all his responsibility, is difficult to accept. But, as we have stated above our scope of the jurisdiction is limited, we have no alternative but to confirm the award of the Arbitrator in this regard.
(Emphasis supplied) V. Issues 4 (a) (b), (c) and (d) - Excavation over areas.
1. Serial No.4 of the schedule A of the Contract deals with excavation of areas in hard/dense soil not exceeding 1.5 meter deep and getting out including trimming and levelling the surfaces to required level, grade in etc. For such excavation, measurement is done in cubic meter and the payment is made at the rate fixed per cubic meter. S.No.1 of Schedule A of the contract agreement deals with surface excavation. Here, measurement is taken in sq.meters and payment is made accordingly.
2. The claimant contends that for calculating excavation over areas, at dense soil as provided in S.No.4 Schedule A, measurement has to be made from the surface up to the bottom of the excavated area whereas the Appellant's contention is that for the surface excavation for this area, the claimant has already been paid at square meter rate and therefore, payment has to be made only from the existing level i.e. the level after the surface excavated area is excluded. According to the claimant, for the same area for which he has paid as per square meter rate, the Appellant is also required to pay as per the cubic meter rate. According to the appellant, it will amount to double payment. Condition 3.2.2 of the contract deals with "excavation".
3.2.2. The entire area occupied by runway pavements, taxi tracks, dispersals etc. shall be surface excavated to a depth not exceeding 30 cm deep but averaging 15 cm deep irrespective of whether the formations are in cutting or filling to clear the area from shrubs, vegetation, grass, brush wood, trees and saplings not exceeding 30 cm in girth.
3.2.5.The quantities of excavation shall be computed from existing ground levels and levels taken after excavation using Simpson's rule for computing areas and Prismoidal formula for computing volume.
3. The arbitrator has referred to Ex.C-86 dated 09.01.1989, letter written by the Garrison Engineer, which reads as follows :
The method of measurement for excavation and embankment/ filling shall be done in accordance with Clauses 3.2.2, 3.2.5 and 3.3.12 of particular specifications Section II of the contract agreement. The quantity of earth work, both cutting and embankment shall be computed by considering the existing ground level before surface excavation and that of finished formation level obtained after consolidation of earth work. A sketch showing the quantum of excavation and embankment which shall be considered for the purpose of payment is enclosed for reference.
4. From this letter, the arbitrator concluded that as early as on 09.01.1989, Appellant had stated that the quantity of earth work both for cutting and embankment shall be calculated by considering the existing ground level. After Ex.C-68 dated 09.01.1989, there was another letter dated 12.09.1989, marked as Ex.C-69 where the respondent was informed that the Chief Engineer had decided that quantity of excavation and filling shall be computed from the existing ground level. From these two exhibits, the Arbitrator has concluded that the Appellant had confirmed the methodology of payment for excavation in hard/dense soil. The Appellant sent a letter Ex.C-70 dated 17.04.1990 that the claimant had stated that the surface excavation must be measured first and excavation over areas will be measured later from the achieved ground level after surface excavation. According to the arbitrator, this was a unilateral decision, which contravened agreed understanding between the parties. The arbitrator also referred to Ex.C-71, the letter from the claimant dated 22.01.1990 addressed to the Chief Engineer where the relevant conditions 3.2.5, 3.2.6, 3.3.6, 3.3.12 and 3.3.13 were indicated and had informed the Appellant that the work was done as provided under these conditions. From Ex.C-71, it was also clear that the claimant had been paid for the excavation over hard and dense soil by measuring from the topsoil. It is only subsequently that Ex.C-70 was issued where the achieved ground level was referred. The arbitrator accepted the construction placed on the clauses.
5. The learned Additional Solicitor General produced diagrams to show how the excavation wad done and submitted that merely because some payments were made on an mistaken understanding of the terms of the contract by some subordinate officer, the Appellants cannot be asked to pay twice over for the same area that is excavated. The learned Additional Solicitor General submitted that if the respondent's case has to be accepted, then there was no need for reference to Simpson's formula and the Prismodial formula. The fact that in the special conditions two rates are specified would show that once the surface is excavated and payment is made on the square meter rate for the dense soil that is excavated, thereafter payment should be made only by measuring the volume, deducting the surface area excavated, and what has already been excavated cannot be included again.
6. Clause 3.2.5 refers to existing ground level and levels taken after excavation and in the same clause, there is reference to both computation of areas and computation of volume. By Ex.C-70, the Garrison Engineer had written to the respondent that "the method of measurement of earth work in cutting and filling has been reviewed and the following decision received from Accepting officer is hereby conveyed.(a) Excavation over areas : Surface excavation shall be measured first and excavation over area will be measured later from the achieved ground level after surface excavation. (b)Embankment filling : Surface excavation shall be measured first and then filling has to be paid from the ground level achieved after surface excavation".
7. In this letter, the Appellants used the word "achieved ground level" as contrasted with the word "existing ground level" in the contract. It is possible to construe this letter to mean that the method that had been adopted had been reviewed and the alleged error had been discovered and a decision of the Executing Officer has been rectified or it is possible to construe it to mean that what was originally understood by both the parties was reviewed and a decision received from the Accepting Officer was confirmed. Both the constructions are possible.
8. The learned Arbitrator was of the opinion that the respondents case is that they have based their rights on the basis of the contract provisions and that they cannot be altered unilaterally afterwards was correct. The arbitrator also concluded that the appellant by its letter Ex.C-88 and C-69 had not only indicated the manner in which the measurement was to be made as understood by the claimant/ respondent and payment had also been made accordingly and therefore, the unilateral rejection was unwarranted and that the claimant is entitled to payment by measuring the excavation done over areas of hard/ dense ground level.
9. In the decision of the Supreme Court which we referred to earlier, the Supreme Court has held that if the views of the Arbitrator is plausible then Courts cannot interfere unless there is a manifest error or the construction is improbable. In this case, the appellants had not only by its conduct indicated that the appellant and the respondents have understood it in all manner but they have also made payments accordingly. But now they have come forward with a case that mistaken payment was made which was set right by the Accepting Officer, which cannot be entertained by us. We confirm the conclusion of the Arbitrator under this head.
VI. Issue No.9 Cutting and Filling in LCN 5(a). The next head of claim is cutting and filling in LCN 5 area. According to the claimant, at a meeting held on 20.10.1989, in which the Works Engineer ordered the claimant to excavate up to sub-base level and to grade shoulders immediately adjoining the main pavement so as to facilitate drainage of rain water.
(b) According to the claimant, originally agreed drawings do not provide for this. It was only for the first time at the meeting held on 20.10.1989, this direction was given. Therefore, a claim was made for cutting and filling in LCN 5 area.
(c) The appellant however submitted that condition 39 of the general conditions of contract requires the contractor to remove all water that may accumulate on the side during the progress of work and this shall be done at the contractor's expense and to the satisfaction of the engineer in-charge and it is this drainage work that was done and it was no extra work and therefore, no amount can be paid in this regard.
(d) The learned Additional Solicitor General submitted that in this case, Court should take into account what was the project. The project was the construction of a run way for Naval Air force and the runway has to be free from water logging. There was no work order given for cutting and removing LCN 5 upto sub base level nor filling it up. Without there being a work order, it is not possible to accept the case of the claimant that they had executed it at the instance of the appellant. The learned Additional Solicitor General submitted that keeping the runway free from water logging was part of the contract and if the respondent had done anything in this regard, then that cannot be treated as extra work.
(e) The learned counsel for the claimant on the other hand submitted that not only was there a specific direction to cut upto sub-base level but payment have also been made for this work. The learned counsel submitted that the drawings given by the appellant was faulty and it was only thereafter, that they had requested the claimant to cut LCN 5 up to sub-base level. The learned counsel submitted that the claimant had offered his estimate on the basis of the drawings when it was asked to cut up to sub-base level and therefore, he is definitely entitled to extra payment. LCN area is the area of both sides of the runway. The arbitrator had referred to clause (1) of the Particular Specification Section II of the contract agreement which states that the work under this contract shall be carried out in accordance with the description of the items of work in Schedule A. Clause 3.2.3.1 deals with excavation and it merely states that excavation shall be carried out only to the extent directed to achieve formation levels to the required gradient and camber. Ex.C-80 dated 09.10.1990 is the letter written by the claimant to the Garrison Engineer. The learned Arbitrator had referred to this letter where the claimant had stated that the appellant wanted him to cut the shoulder portion in cutting areas to match up to top of sub-base level in the main pavement and then subsequently refill up to sub-base.
(f) The arbitrator had also taken into account Ex.C-81, which was written by the claimant stating that he is carrying out work at LCN 5 sub base level up to top level. Ex.C-82 is the letter dated 4 July 1991. The learned Arbitrator took note of these where the appellant had stated that as per clause 3.2.3.1, excavation shall be only to the extent directed to achieve formation levels to the required gradient and camber and therefore, no payment would be made. The learned Arbitrator therefore went into the question whether this was an extra work or not. The arbitrator had noted that "It is not denied that in LCN 5 area, cutting was done up to sub-base level as per the direction given in the Joint Meeting. It is the say of the respondent that such work is necessary to drain the accumulated water at the site".
(g) According to the learned Additional Solicitor General, no such direction was given in the general meeting and on facts, the arbitrator found that the drawings attached do not specify cutting up to sub-base level in LCN 5 and if cutting is not done as above, the runway will be affected by water logging and the learned Arbitrator held that this is the reason why the appellant had written Ex.R-203 on 26.10.1989 that the claimant should make arrangements for draining as discussed during the conference on 20.01.1989 to protect the surface from rain during the forthcoming season and therefore the Arbitrator held "From the facts and circumstances of the case, it is clear that unless that LCN 5 portion is cut up to sub base level, the main runway will be affected by water logging situation". The Arbitrator was of the opinion that since the drawings were defective and it did not include cutting in LCN 5 to up to sub base level, this was extra work for which the contractor is entitled to be paid.
(h) It is the case of the appellant that what was directed at the meeting dated 20.10.1989 was only to protect the surface during the monsoon season, in accordance with Clause 39 of the General Conditions of contract, and nothing more. Condition 39 of the General conditions of contract reads as follows :-
"All water that may accumulate on the site during the progress of the works or in trenches and excavations from other than the accepted risks shall be removed from the site to the entire satisfaction of the Engineer-in-charge and at the contractor's expenses".
(i) In Ex.C-80 there is reference to the cutting up to sub-base level in LCN5 and for release of payment. Again in Ex.C-81, the claimant has informed the appellant that they are excavating the main pavement including LCN 5 up to sub base top level and that they require payment. It is only on 04.07.1991 that the reply Ex.C.82 is issued stating that the question of payment does not arise.
(j) The learned Arbitrator was of the opinion that the drawings attached are integral part of the contract agreement as per clause 1 of the pre-specification and the drawings done include cutting LCN 5 up to sub base level. From the award, we find that the appellant had admitted before the Arbitrator that this work is necessary to drain rainwater at the site and if it is not cut up to sub-base level, runway will be inundated with water during rainy season. According to the appellant, since without cutting the LCN5 up to sub-base level, contractual obligation of draining water cannot be achieved, it is extra work. But according to the claimants, this is a specific work that had to be done and the claimant can only carry out the work as per the drawings and unless the drawings specify that there should be cutting up to sub-base level at LCN 5 and filling up the same, any work done in this regard can only be treated as extra work and not as part of the obligation under Clause 39. The learned Arbitrator was inclined to accept this and we do not interfere, as this is a plausible explanation. We are unable to interfere with the award under this head.
(Emphasis supplied) VII. Issue no.11. Erroneous computation of Labour Escalation :
(a) The agreement between the parties provided for calculating the minimum wages as per the formula agreed to by the parties on the basis of which labour escalation is computed. According to the appellant, this is an accepted method and not an arbitrable dispute since as per special conditions 18.2.6 of the contract, any dispute arising out of interpretation or application of this special condition shall be referred to the Accepting Officer whose decision shall be final and binding. Therefore, according to the appellant, this dispute is not arbitral.
(b) According to the respondents, no interpretation is involved to decide this issue and what is required is only calculation. The learned Arbitrator referred to the declaration at page 89 of the agreement, which gives the schedule of minimum wages. It was contended before the Arbitrator that contrary to the express agreement between the parties, appellant released payments by adopting a wrong value. This was protested by the respondent herein. The learned Arbitrator was of the opinion that there was no interpretation or application of special conditions involved. The learned Additional Solicitor General took us through various terms of the contract to show how this method of calculation was wrongly understood by the arbitrator and therefore, it amounted to interpretation and hence not arbitrable. On the other hand, the learned counsel for the claimant submitted that it is a mere case of application of formula appended to the agreement and nothing more is required. The relevant condition in this regard is Clause 18.
The labour component of work under the contract as a whole shall be taken as KL of the value of the work executed under the contract. Variation in labour wages shall be worked out by applying the following formula :-
REIMBURSEMENT/REFUND ON VARIATION IN PRICES WAGES of LABOUR.
EL = [KL/100 x VGL] X L1-L0/L0 Where EL is variation in wages of labour reimbursement to be made to the contractor or refund to be made by the contractor.
KL is constant representing the percentage cost of labour element as compared to the total value of the work under the contract as a whole. The value of KL for the work shall be 17.
VGL is the gross value of work done at contract rates during the period of reckoning less value of work paid or payable to the contractor based on actual cost work executed under Prime Cost sum etc. during the period of reckoning.
L1 is minimum wage in rupees of an unskilled adult male mazdoor as fixed under any law, statutory rule or order as on the date of commencement of the period of reckoning.
LO is As for L1 but the minimum wage in rupees of an unskilled adult male mazdoor as on the last due date for receipt of tender.
(c) Reference can be made to G.O.Ms.No.1568 Labour and Employment dated 5 July 1983 herein S.No.12 relates to Labour and Workers involved here belong to Category II. To the site where the project was allotted to the contractor, the minimum wages was Rs.9 and 16 per day. The schedule of minimum wages as per Government of India notification for Zone "C" itself was Rs.10.25. The Arbitrator after considering condition 17.3.4 and 18.2.6 held that the respondent was entitled to claim for escalation of labour taking the minimum wages as Rs.10.25 and that will be the amount for considering charges. The Arbitrator held that on a comparison between the minimum wages fixed by the Central Government and the State Government, which ever is higher has to be adopted. There is no question of interpretation herein. It is mere calculation and therefore, the contention of the appellant that it is not an arbitrable issue is rejected. The award under this head is rejected.
VIII. Issues 14 and 14-A - Change in location of Plan Site :-
a. According to the claimant, he had given his estimate and made his quotation on the basis of the conditions including representations made in respect of quantities under different items as also lead of carting raw materials from their sources to the plant site. But by altering the plant site, the appellant increased the lead by 1100 meters over and above the lead estimate by the claimant.
b. The appellant's case is that they had not directed the claimant to erect plant at any particular site. The claimant has not given any details for the plant allocation and subsequent change and the evidence of RW-4 is also with regard to location of shed and labour camp and not the plant site. According to RW-4, the present place where the plants were situated were selected by the claimant by mutual agreement and therefore, the question of exemption would not arise. The whole claim is based on assumption and cannot be granted.
c. On the side of the claimant, it is stated that in the drawings given, the appellant has marked the position of the plant work area, free of cost. On this basis, the claimant has calculated the route for raw materials and also for storage of materials. During the execution of work, the respondent was shown a different location from the original location. According to the claimant, RW-4 the appellant witness, had admitted that the location is not as per the drawings.
d. The learned Additional Solicitor General showed us pictures of the machines involved and submitted that these machines are of such dimensions that they could not have been housed in a shed and most of the machines are on the move. They were never stationary and therefore, the claim made on the ground that there is additional load is totally unsustainable. The learned counsel for the claimant submitted that factually it was found that the appellant had directed the respondent to have the plant site at a different location and this resulted in extra expenditure for the respondent for which he had made a claim. The learned Arbitrator had seen the drawings, which showed that three places were marked for the sheds to be erected by the respondent. He had also taken note of the evidence of RW-4 that the place given location of the plant is not as per the drawing. RW-4 had stated, "It is not as per the drawing. But, within the provisions of para 10 of the contract agreement, the site was given to the contractor at the place now marked by me by showing the place within the red marked portion and this place was mutually agreed by both the contractor and by the Department".
e. The contention of the appellant is that when the subsequent location of the plant site was moved, the respondent did not protest. However, the Arbitrator had accepted the evidence of the claimant that when he quoted the rate, he had taken note of the site where the plant had to be located, as shown in the drawings.
f. In Ex.C-97, letter written by the claimant, they had claimed that there are three locations marked on the plan along the runway and when they quoted the tender they had taken into consideration of the three locations for their temporary work shed, installation, storage of machinery and they had also taken into consideration the rates of materials placed on the location and that after the award of the work, when the claimant approached the appellant for allotment of site, as marked in the original drawing, they had been allotted space which was totally different and therefore, they had to carry the materials to a different location. There was another letter dated 10.02.1992, marked as Ex.C-99, by which the claimant informed the Garrison Engineer about the extra lead of 1,100 meters due to change of location. To this the appellant responded by his letter Ex.C-100 dated 25.02.1992 that "it had been made amply clear that the location of the plants, workshops etc. were approved as selected by the claimant and that therefore, the claim of the claimant were untenable".
g. According to the Arbitrator, this change could not have been at the instance of the claimant and that the change was not unilateral. The fact that the claimant had agreed to change did not make any difference to the conclusion of the Arbitrator since the learned Arbitrator was of the opinion that the appellant had made this change subsequent to the contract and different from what was shown in the drawings and therefore, for this the respondent is entitled to extra charges. The learned Arbitrator has given detailed reasons why this claim had to be granted and we do not think it we can interfere.
h. There is one more aspect, which we have to deal in this regard. Though this ground relating to change of plant site was not raised as a ground before the learned Single Judge, petition was filed for permission to raise this additional ground before us. This was strongly objected to by the learned counsel for the respondent. The learned Additional Solicitor General submitted that while admittedly that ground was not raised before the learned Single Judge, the fact remains that the Single Judge had given a finding in this regard.
i. This issue is purely a question of fact. We do not know whether this ground was earlier raised before the learned Single Judge. In any event, we have before us a finding rendered by the learned Single Judge on this regard. Therefore, we do not think we should preclude the appellant from raising this ground and we are also of the opinion that would be in the interest of justice. Therefore, we permitted the appellant to raise this ground and we have also gone into the merits and rejected this ground.
IX. Next we come to the settlement of final bill. Here it is a pure question of fact as to whether the final bill is settled and whether the Advocate Commissioners Report is taken into account or not. We see no reason to interfere with this.
(i) As regards the interest, the Arbitrator has given reasons why 18% should be awarded. Since that is the rate at which the appellant has charged interest for the mobilization advance. The learned counsel for the respondent referred to the judgment in 2005 (6) SCC 462 (cited supra) where in a somewhat similar situation the Supreme Court held that when the HCL has given advance to BOL at the rate of 18% which was a relevant and germane factor which have weighed with the Arbitrator the award passed requires no interference. The learned Single Judge had reduced the interest in view of 2005 (6) SCC 462(cited supra) which was a somewhat similar case, we cannot interfere.
14. In the result,
(i) the award for idle hire charges and value of tools and machineries is set aside and
(ii) the finding regarding extension of time and illegal termination of contract is set aside.
The appeal is partly allowed. No costs. The order of the learned Single Judge is confirmed in other respects. The connected miscellaneous petition is closed.
(P.S.D.,J.) (G.M.A.,J.)
20-07-2010
Internet: Yes/No
Index: Yes/No
glp
PRABHA SRIDEVAN,J.
and
G. M. AKBAR ALI,J.
glp
O.S.A.No.177 of 2009
and M.P.No.1 of 2010
20-07-2010