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"(b) Temple Beth Sholom & Jewish Ctr., Inc.V. Thyne Constr. Corp.

The proper measure of damages for construction defects is the cost of correcting the defects, except in certain instances where the corrections involve an unreasonable destruction of the structure and a cost which is grossly disproportionate AS.70/2013 to the results to be obtained. Gory Associated Industries, Inc. V. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4 th DCA 1978): Edgar V. Hosea, 210 So.Sd 233 (Fla.3d DCA 1968).

If in the course of making repairs he owner elects to adopt a more expensive design, the recovery should be limited to what would have been the reasonable cost of repair according to the original design. Cf. Pinellas County v. Lee Construction Co., 375 So.2d 293 (Fla.2d DCA 1979), in which this court reversed a judgment which had limited the award for construction defects to the contract price and permitted recovery of the cost of the most reasonable method for remedying the defects.

AS.70/2013

65) It is important to note that, Defendant constructed expensive wall based on new design. In that situation, Defendant is entitled to value of the defective work. Value of the defective work was to be assessed having regard to the initial costs of construction of Western retaining wall. Here, learned Arbitrator has awarded cost of construction of expensive wall, which was built based on new design and also awarded initial construction cost of the wall. In other words, Defendant's wall made of free of costs. As held in Temple Beth Sholom & Jewish Ctr., Inv. V. Thyne Constr. Corp., the proper measure of damages for construction defects is the cost of correcting the defects, which would be most reasonable method for remedying the defects. In this case, if Plaintiff is held responsible for defective design, at the most, he would be liable to pay initial cost of construction of retaining wall, which is shown as Rs.28 lakhs and odd. Instead, Defendant has been awarded initial cost of construction of retaining wall and cost of AS.70/2013 construction of expensive wall and thereby, Defendant's retaining wall made of free of cost. This certainly shocks the conscience of the court. In Associate Builders case, stated supra, it is held that, the award can be said to be against justice when it shocks the conscience of the court and further held that, award contravenes the substantive law of India; the Arbitration and Conciliation Act, 1996; and the terms of contract, would amount to patent illegality and is liable to be set aside. Moreover, in this case, award has been passed as if sum of penalty were named in contract as the amount to be paid in case of breach, which would contrary to the provisions of the Indian Contract Act, 1872 and terms of contract. In that view of the matter, this Court opines that, as the illegality goes to the root of the award, same requires to be set aside, accordingly, I answer point No.2 in the affirmative.