Document Fragment View

Matching Fragments

It is argued that the arbitrator has completely misdirected his mind in allowing the claim for repair and rectification in full. The arbitrator has completely ignored that there is a clear bar to pay the same in Clause 7 of the Special Terms and Conditions and Clause 14 of the WBF No.2911(ii) as the contractor is bound to keep the road in good condition.

Clause 7 of the Special Terms and Conditions of the contract executed by and between the parties specifically states that the contractor is liable to maintain the subject road and to mend good potholes/ depressions and to keep the road traffic worthy from the date of work order till completion for which no additional claim shall be made. Clause 17 of the Conditions of Contract (WB Form No.2911(II) inter alia specifies that if any damage happens to the work while in progress due to any cause or any imperfection becoming apparent in it, within 6 months after a certificate of its completion have been given by the Engineer in Charge, the contractor shall make the same good at his expense or in default the Engineering in Charge may cause the same to be done by other workmen and deduct the expense relating to the same from any sum that may be then or may at any time thereafter become due to the contractor. In this regard the learned Advocate General has referred to the Clauses 5, 7, 8(iii),13, 14, 16 29, 40 and 43 of the Conditions of Contract and Special Terms and Conditions (WB Form No.2911 (II)). The said clauses are reproduced below:-

The security deposit of the contractor made in the manner provided in Clause 1 hereof shall be refundable on the expiry of 3 moths (6 months in the case of a road work) after the issue of the certificate, final or otherwise of the completion of the work subject to the condition that no such refund or security deposit shall be allowed till the final bill has been prepared and passed. Provided however, that in the case of road work if in the opinion of the Engineering-in-charge half of the security deposit is sufficient to meet all the liabilities of the contractor under this contract, half of the security deposit will be refundable after three months of the issue of the said certificate of completion, provided further that in the case of any work (whether Road, Building, Bridge, Electrical Sanitary & Plumbering etc.) where the Engineer- in-charge is satisfied that the contractor after completion of the major portion of the contract is unable to execute remaining part of the work for reasons beyond his control, the Engineer-in-charge in his discretion may make a proportionate refund of the security deposit to the contractor.