Point of Law: Nature of award is more or less is a consent award, based on admitted facts with respect to handing over partial site and delay in handing over complete site causing non-completion of work within stipulated period.

JUDGMENT :

Vivek Singh Thakur, J.

This petition has been preferred by the State, through Executive Engineer, I&PH Division, Bilaspur, H.P., under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 05.04.2016, passed by S.E. Arbitration, Solan, whereby the Arbitrator has awarded Rs. 57,45,832/- in favour of the respondent for escalation of price against claimed amount of Rs.61,74,863/-.

2. The respondent was awarded work of construction of LWSS Shri Naina Devi Ji including execution and supply of material vide award dated 30.07.2009. Work was to be completed within one year, i.e. upto 13.08.2010.

3. For non-execution of work, department intended to forfeit the performance bond of the petitioner, whereupon, respondent had approached the High Court, whereafter, order for appointment of Arbitrator was passed on 28.12.2010, and vide order dated 22.06.2011, Arbitrator was appointed and arbitration proceedings were started.

4. Respondent had put-forth his claim on six counts, i.e. (1) Escalation (2) General (3) 15th Final Bill (4) Prolongation (5) Performance Bond and (6) Litigation Expenses.

5. On conclusion of arbitration proceedings, the Arbitrator has awarded Rs. 57,45,832/- under Claim No.1 for Escalation, whereas, he has rejected the other claims of the respondent.

6. It is undisputed that during proceedings before the Arbitrator, department had acceded to the claim of the respondent that site was not made available to him till 14.02.2011 and only partial site was made available on 15.02.2011 and clear complete site was made available on 20.11.2011, whereafter he had completed work on 30.06.2012. The Arbitrator had recorded the admission and assent of the department with respect to claim of escalation, which has not been disputed in the present petition. The relevant portion recorded by the Arbitrator reads as under:-

“vi) From the series of events narrated in para (v) above and para (ii) & (iii) it clear that the contractor could not execute any work till 22.1.2011 because of non clearance of forest land. The delay happened on the part of respondent/EE in fulfilling his fundamental contractual obligation of handing over the site which he did in peace meal manner in extended period of execution of work. During the proceedings of 12th hearing held on dated 20.02.2016, it is apparently admitted by both the parties that the contractor could not do any work till 14.02.2011 and only partial site pertaining to civil structures including raw water tank was handed over to him on 15.2.2011, and further the site for clear water tank at Naina Devi Ji i.e. full site was made available to him on 20.11.2011. More so, even the respondent/EE admitted that the reasons of delay incurred cannot be attributed to the contractor because no penalty was levied upon him under clause 64 by then Executive Engineer.

vii) The defence of the respondent/EE that this claim is not payable because the variation in process incurred of labour, material etc. stood already covered within 10% under clause 60 of the agreement was found incorrect, because later on this claim when checked by him and submitted in 7th hearing on 19-5-2014 came out to be 57,45,832/-.

viii) From the paras above it I clear that the work was got executed from the contractor in the extended period without his defaults. From the aforesaid facts, surrounding circumstances and conduct of the contractor during execution of work at the relevant time, it can be construed that the contractor did not lack in deploying his resources as and when the site was made available to him and finally he completed the work on 30.06.2012.

ix) During the 6th hearing dated 21.4.2014, the respondent/EE agreed to the amount of this claim if preferred & adjudicated under clause 60 of the agreement. Accordingly in the 7th hearing the respondent/EE submitted the price escalation claim clerically checked for Rs.57,45,832/-. The claimant/contractor also agreed to this amount.

In the light of di