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IN THE HIGH COURT OF JUDICATURE AT MADRAS
VINEET KOTHARI, C.V. KARTHIKEYAN, JJ.
Software Technology Parks of India – Appellant
Versus
Consolidated Construction Consortium Limited – Respondent
O.S.A. No. 157 of 2019, C.M.P. No. 14364 of 2019
Decided On : 08-08-2019
Arbitration and Conciliation Act, 1996 - Section 37 - Order XXX - VI Rule - Contract Act, 1872 - Sections 73 and 74 - Claim its difference against the Bills - Construction Consortium Limited - Appeal has been filed by Software Technology Parks of India Arbitration and Conciliation Act aggrieved by order passed by Single Judge of this Court in which was filed section Act by Respondent/Contractor Consolidated Construction Consortium Limited - Software Technology Parks of India and the learned Single Judge by the order impugned before us was pleased to set aside Arbitral Award passed by the learned Arbitrator sole Arbitrator - Software Technology Parks of India awarded a contract of construction of office building to Respondent contractor Consolidated Construction Consortium Limited and scheduled date for completion of said construction Since Contractor did not complete construction within time but it was completed -Held, Court cannot sustain argument of counsel for Respondent Contractor herein who submits that clause was hit by Section of contract Act - No such challenge to clause was ever laid - It is part of contract under which Respondent Contractor himself has taken the said work and completed same - Therefore there is clear admission and acquiescence to all terms of contract on part of Respondent Contractor Therefore such a flimsy challenge raised at this belated stage before this Court is only an ingenuity of argument of the learned counsel which has no substance at all Contractor in case of Bharat Sanchar Nigam Limited Motorola India Private Limited is also not applicable to the facts of present case - On contrary Court find that akin clause therein while referring clause which the liquidated damages was provided Honble Apex court has in that contention Respondent that clause referring to special clauses has an overriding effect on clause and there is no conflict between and that is what court also feel that claim of liquidated damages does not depend upon operation clause Agreement between parties which is not even a fact situation in of present case as no third party was ever engaged for execution of work in question - Therefore said Judgment instead of being of any help to counsel for the respondent supports view which court have taken as aforesaid - Therefore court find that grounds on which Single Judge thought it fit to set aside Award were not at all available within scope of Section Act and therefore order of Single Judge impugned before us in present Appeal cannot be and same deserves to be set aside – Appeal allowed
JUDGMENT :
VINEET KOTHARI, J.
PRAYER: Appeal filed Under Section 37 of the Arbitration and Conciliation Act, 1996, Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of Letters Patent against the decree and order dated 02.01.2019 made in O.P. No. 433 of 2010 on the file of this Court.
1. This Appeal has been filed by Software Technology Parks of India under Section 37 of the Arbitration and Conciliation Act, aggrieved by the order dated 02.01.2019 passed by the learned Single Judge of this Court in O.P. No. 433 of 2010, which was filed under section 34 of the Act by the Respondent/Contractor, M/s. Consolidated Construction Consortium Limited vs. Software Technology Parks of India and the learned Single Judge by the order impugned before us, was pleased to set aside the Arbitral Award dated 10.05.2010 passed by the learned Arbitrator, Mr. K. Srinivasan, the sole Arbitrator.
2. The dispute between the parties, in brief is as follows:
3. The learned Arbitrator by its Award dated 10.05.2010 upheld the deduction of the liquidated damages by M/s. Software Technology Parks of India but refused further claims by both sides and thus, dismissed the counter claim of the Appellant contract as well as the claim of the contractor and granted Nil amount in its impugned Award. The said Award came to be challenged before the learned Single Judge under Section 34 of the Act by the contractor M/s. Consolidated Construction Consortium Limited and the learned Single Judge set aside the said award by the order impugned dated 02.01.2019, by making the following observations in the impugned order:
13. The fact that the Petitioner was granted the Contract on 15.03.2006 for a period of two months is not in dispute. Though, the work has to be executed within a period of ten months as per the contract, the Petitioner could not execute the work within the agreed period, due to landslides and rains. The Petitioner could complete the Project on 30.11.2007, by seeking extension of time that was granted by the 1st Respondent and as on date, there appears to be no complaint about the building constructed.
14. The fact that there were rains and landslides is also not in dispute. If the building had been erected and there were landslides, it would affect the building constructed and there would not only have been loss of money, but also loss of lives and that the 1st Respondent should thank the stars that no untoward event took place.
15. Clause 26 cannot be read in isolation without reference to Clause 27 of the Agreement. For better appreciation, both clauses are extracted hereunder:
“26. Liquidated Damages - If the Contractor fails to complete the works by the date stated in the Appendix or within any extended time under Clause 28 hereof, the Contractor shall pay or allow the Employer to deduct the same named in the Appendix as Liquidated Damages' for the period during which the said works shall remain incomplete and the Employer may deduct such damages from any money due or that may become due
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