Mukul Mudgal, J.

1. This appeal challenges the judgment of the learned Single Judge dated 21.10.1997 by which the objections preferred by the original respondent/DDA i.e., the appellant before us, were dismissed and the award dated 19.6.1993 was made a rule of the Court. Before us, the submission of the learned Counsel for the appellant is in respect of Claim No. 8 which awarded damages to the respondent on account of infructuous expenditure and damages sustained by the contractor due to various breaches of delays committed by the appellant. The Arbitrator dealt with the aforesaid claim in the following terms:

Claim No. 8: Claimants claim a sum of Rs. 15.00 lakhs on account of infructuous expenditure and damages sustained by the contractors due to various breaches committed by the respondents.

AWARD:

The work could not be completed by the claimant within the stipulated period of contract for reasons beyond its control and due to the reasons substantially attributable to the respondent, such as non-issue of drawings, non-issue of stipulated materials, i.e., cement, steel, pipes and shutters and also due to existence of various hindrances, such as existence of Nallah and non-laying of electrical conduits. Thus, as against specified period of 12 months the work was completed in 37 months. As per Clause 2 of the Agreement, the time was deemed to be the essence of the contract and if there was any delay in completion on the part of the claimants then it was liable to pay a specified sum as compensation to the respondents. The fact that the extension of time for completion of work up to 9.11.1987 against the stipulated date of completion of 7.10.1985 was granted by the respondents without levy of compensation implies that the delay of more than 2 years in completion of work was not attributable to the claimant. The denial of the claim by the respondents on the grounds of an undertaking having been given by the claimant to the effect that it (the claimant) will not claim any damages due to delayed completion of work carries no meaning. In this context I rely on the ratio of the judgment DLT-1988-PPs 476 of Delhi High Court. Another argument advanced by the respondents in denying the claim on the plea that due to delayed completion of work the claimant had been paid under Clause 10-CC holds only partially good because Clause 10-CC does not make up for the entire loss which a contractor is bound to suffer due to escalation in costs as well as on account of non-utilization of establishment and T & P fully during the prolongation period. The claimant argued that the prevailing rate in the year 1986-87 for similar works was higher by 43.50 per cent as compared to the rate at which the work was awarded to him. This contention of the claimant was not contradicted by the respondents. However, considering the payment having been made/allowed under Clause 10-CC and also that the stipulated material even during the prolongation period was issued at fixed price I feel that the claimant is entitled to 10 per cent extra on the work executed during the extended/prolongation period. Admittedly, the quantum of work executed during the extended period was to the extent of Rs. 49,62,612. Thus, in view of the above the claimant is entitled to a sum of Rs. 4,96, 261 due to increase in price/rates during the prolongation period. As has already been established in the preceding paragraphs, the work which was contemplated to be completed in 12 months prolonged to a period of 37 months. Under the circumstances it cannot be denied that the establishment and T & P had to be maintained at site for additional period of more than 2 years which is bound to entail additional/infructuous expenditure. I assess damages on this account to the tune of Rs. 2.00 lakhs. Thus, in view of my above finding I hold that the claim is justified to an extent of Rs. 6,96,261 and accordingly I award this sum in favour of the claimant.

2. The objections in respect of claim N