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2005 Supreme(AP) 337
Andhra Pradesh High Court
Judges : G.YETHIRAJULU, T.MEENA KUMARI
Union of India, rep.by General Manager South Central Railway - Appellant
Versus
Satyanarayana Construction Co. - Respondent
Decided On : 04-08-05
Headnote:
Constitution of India,1950 - Strict conformity of the guidelines issued - Alignment - Notice - Appellants as projected in the OP, is appellants called for open tenders for the earth work from between stations in connection with doubling of tracks between Sections and the first respondent submitted his tender for the said offer and the tender was finalized in strict conformity of the guidelines issued - It is stated that the said work has to be completed - Nature of work includes works as variation quantities in name stretch by predecessor Contractor in the two contracts and that variation in quantities was occurred due to revision of alignment effected for easing as well as elimination of a few curves - Predecessor of first respondent had already executed some work by then and his agreement quantities were on higher side agreements were ordered for closure in order to execute the left over quantities at competitive rates through open tenders - It is also stated that importance for completion of said work within the stipulated time has been mentioned in of particulars of work and first respondent agreed to complete the said work within stipulated time – Held, Imposed against him only in terms of agreement of contract - Appellants did not impose penalty while extending time due to some variance in the nature of work - Factors would go to show that appellants have taken note of difficulties that have been encountered by first respondent while imposing penalty - Since first respondent did not complete work within time agreed upon by him and in terms of the conditions of the contract - Appellants imposed fine amount and same cannot be directed to be refunded to the first respondent - Regard to claim granting of interest, it is to be seen that clauses 16 (3) and 64. 5 of General conditions of Contract prohibits granting of interest. Since claims Nos. 4 and 8 have been rejected by this Court in earlier question of granting interest to first respondent does not arise and hence he is not entitled for the same - Claim No. 6, second respondent has granted a sum of said amount has to be calculated at the time of settling final bill and hence the appellants have to calculate final bill and pay amount if not already paid, to first respondent within a four weeks from date of receipt of a copy of this order with interest at the rate of 12% per annum from of payment of the said amount - CMA is allowed
( 1 ) THIS CMA is filed questioning the order and decree dated 4-7-2002 passed in OP no. 77 of 2001 by the learned I Addl. Chief judge, CCC, Secunderabad wherein the OP filed by the appellants herein against the award of the second respondent dated 31-12-2000 has been dismissed confirming the said award.
( 2 ) THE case of the appellants, as projected in the OP, is as follows: the appellants called for open tenders for the earth work from Ch. 24150 M to ch. 27700 M between Dharur rukmapur stations in connection with doubling of tracks between Vikarabad and Tandur Sections and the first respondent submitted his tender for the said offer and the tender was finalized in strict conformity of the guidelines issued. It is stated that the said work has to be completed by 5-5-1997. Accordingly, an agreement was entered into and the parties accepted the same.
( 3 ) THE nature of the work includes the I ft er works as the variation quantities in the name stretch by the predecessor Contractor m. Y. J. Venkata Rao in the two contracts and that variation in the quantities was occurred due to the revision of alignment effected for easing as well as elimination of a few curves. As the predecessor of the first respondent had already executed some work by then and his agreement quantities were on the higher side, the agreements were ordered for closure in order to execute the left over quantities at competitive rates through open tenders. It is also stated that the importance for completion of the said work within the stipulated time has been mentioned in para 2. 2. 1 of the particulars of the work and the first respondent agreed to complete the said work within the stipulated time.
( 4 ) FURTHER, the appellants submit that though the first respondent submitted a programme on 28-1-1997, the claimant left huge gap between commitment and performance and the petitioners addressed cautioning the first respondent to enhance in puts so as to complete the work within the time stipulated and the appellants also granted extension of period without penalty in the beginning and later issued a termination notice and revocation and the second extension was given with penalty since the first respondent did not perform to the accepted conditions and thus committed breach and hence the right imposed on the appellants to impose reasonable penalties cannot be taken away from the appellants.
( 5 ) THE next contention of the appellants before the learned I Addl. Chief Judge, CCC, secunderabad is that the second respondent-Arbitrator did not follow the procedure and he did not adduce evidence and also did not provide reasonable opportunity to the appellants and that this court has no right to appoint arbitrator and hence the award of the second respondent is liable to be set aside. As the learned I addl. Chief Judge passed the judgment confirming the award of the second respondent without taking into consideration of all the aspects that have been raised by the appellants, the judgment in OP is also liable to be set aside.
( 6 ) ON the other hand, the first respondent filed written statement pleading that the tender notice in respect of present works related to left over works only and as his predecessor-contractor faced very hard and rocky soil during excavation of the earth work and as it was beyond his estimation for which he was not prepared to work at the rates agreed upon. The earth work also included cutting off all types of soils including of disc integrated rock with boulders of any size or continuous rock which required blasting at the site and to blast the rocks, they have to acquire permission from the district Collector, Ranga Reddy District and they could get licence on 14-2-1997. It is also stated that the appellants requested him to take over the stretch from Ch. 24150 M to ch. 26040 M which was completed in all respects as per the programme. Due to above circumstances, he could not complete the entire work within the time stipul
