JUDGMENT :

Shampa Sarkar, J.

1. This is an application for appointment of an arbitrator in terms of Article 26.3 of the Engineering, Procurement and Construction Agreement dated December 2, 2019, (hereinafter referred to as the said agreement). The petitioner is a joint venture between Bharat Vanijya Eastern Pvt. Ltd. and Bharat Infra Projects Ltd. and was formed on May 20, 2019. Bharat Vanijya Eastern Pvt. Ltd. is an infrastructure development company in India. Bharat Infra Projects Ltd. is an item rate contractor involved in the construction of highways, bridges, roads, tunnels, railways, mining buildings, etc. in the north-east part of India. The two entities entered into a joint venture.

2. The West Bengal Highway Development Corporation in short (WBHDCL) is a company incorporated under the Companies Act, 1956. In 2019, WBHDCL invited request for proposals from eligible bidders as per the technical and commercial terms provided therein, for execution of work relating to a project of construction, widening, and strengthening of Bongaon-Chakdaha Road from the existing two-lane with paved shoulder to a standard four-lane.

3. Pursuant to the request for proposal, the petitioner submitted its bid and the said bid was accepted. The letter of acceptance was issued on September 17, 2019, at the contract price of Rs.379 crores. The said agreement was executed between the parties on December 2, 2019. The appointment date was February 28, 2020 and the project was to be completed within the 912th day from the date of appointment. The project was to be executed in the Engineering, Procurement and Construction Mode (EPC).

4. The case of the petitioner as run in the application was that, the petitioner had completed and fulfilled its obligations under the project on April 27, 2022, i.e., well before the scheduled date of completion, in respect of the area over which the right of way had been handed over on the date of appointment. The rest of the work could not be completed as the right of way had not been handed over.

5. The petitioner contended that even though land for construction of the two truck terminals and partial width of the toll plaza could not be handed over within 150 days as per Schedule-A of the EPC agreement, WBHDCL did not extend the date of completion.

6. According to the petitioner, non-completion of the remaining work, was attributable to the lack of access to the land. Such incomplete work should have been deemed to be withdrawn in terms of Clause 8.3(iii) of the agreement. The term was not applied at the appropriate stage, WBHDCL withdrew the unfinished work from the scope of the work, after a lapse of 592 days, although the withdrawal should have been done within the 180th day from the appointment date. Resultantly, the petitioner suffered damages to the tune of Rs.2,01,87,7471/- due to the delay in handing over of the site. The manpower, machineries, etc. remained idle during the entire period. The petitioner requested WBHDCL to pay the aforesaid amount, but the said request was in vain.

7. The petitioner’s further case was that a supplementary agreement was executed between the parties on March 15, 2022 and the contract price was brought down to Rs.322.58 crores. On account of reduction of the contract price, the petitioner suffered further damages to the tune of Rs.5,64,16,019/-. According to the petitioner, such amount was payable in terms of the EPC agreement. The petitioner completed the project prior to the completion date and claimed bonus in terms of Clause 19.20 of the EPC agreement. The completion certificate indicated that the project was completed 122 days prior to the scheduled date of completion and recommendation for payment of bonus for 122 days was made. The petitioner claimed bonus for an amount of Rs. 11,68,95,793/-. To the utter dismay of the petitioner, by a letter dated September 19, 2022, the competent authority of WBHDCL informed the petitioner that, the recommendation of the engineer was reviewed