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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Abdul Quddhose, J.
M/s. Ganon Dunkerley & Co., A company incorporated under the Companies Act IVV 1913, Hyderabad – Appellant
Versus
The Airport Authority of India & Another – Respondents
C.M.A. No. 3012 of 2017
Decided On : 01-11-2021
Arbitration and Conciliation Act, 1996 - Section 37, 34 – Application for setting aside arbitral award - Appealable orders - Whether there are any restrictions and constraints in space and approaches which caused additional costs for Claimant - Held, action of Appellant in initiating Arbitral claim within first eight months of beginning of Contract and even after making claim continuing with work without demur and completing same without making any further claims will clearly prove that action of Appellant will fall within clause (c) referred to supra as presentation of Arbitral claim by Appellant itself is patently void and its invalidity is also incurable as Appellant even after initiating Arbitral claim during period of contract has chosen to go ahead with contract by completing same and handing over project to first respondent - Court is of considered view that Arbitral Tribunal has not applied its mind judiciously while entertaining premature Arbitral claim made by Appellant - Civil Miscellaneous Appeal dismissed
JUDGMENT :
(Prayer: Civil Miscellaneous Appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 against the Judgment and Order dated 23/05/2017 passed in Arbitration Original Petition No.3 of 2002, on the file of the Principal District Judge, Chengalpattu.)
1. This appeal has been filed under Section 37 of the Arbitration and Conciliation Act challenging the order dated 23.05.2017 passed by the learned Principal District Judge, Kancheepuram District at Chengalpattu in Arbitration OP No.3 of 2002 under Section 34 of the Arbitration and Conciliation Act, under which the learned Principal District Judge has set aside the Arbitral Award dated 17.09.2001 passed in favour of the Appellant against the first respondent.
2. The Appellant who is a Contractor was the successful bidder for executing the work of extension and modification to the Anna International Terminal at Chennai. A contract dated 28.10.1999 was entered into between the Appellant and the first respondent and under the said contract, the Appellant agreed to execute extension work at Anna International Terminal, Chennai and the total value of the contract was Rs.10,47,42,194/-.
3. The Appellant sought for extension of time to complete the project by their letter dated 15.04.2000 by giving the following reasons:
(b) Increase in earth work and concrete quantity upto plinth level by more than 100% although the original planned work was done well within the time.
(c) We have encountered hard rock in various foundations which was not envisaged in the tender. As blasting was not allowed we had to remove the stone by chiseling.
(d) The depth of excavation in Sector II, III, IV & V has also increased from 2.50 mtr to 3.50 mtr. Leading to delay in concrete foundation.
4. The extension sought for by the Appellant through its letter dated 15.04.2000 was rejected by the first respondent by their letter dated 19.04.2000 and in the said reply the first respondent has made it clear that the Appellant will have to complete the work as per the Contract i.e., on or before 13.05.2001. Thereafter, the Appellant invoked the Arbitration clause under the contract by their letter dated 20.07.2000 to the Chief Engineer and the Arbitral Tribunal was constituted in terms of the arbitration agreement. Before the Arbitral Tribunal, the Appellant made the following claims against the first respondent:-
| S. No. | Description | Amount |
| 1. | Claim No.1 |
|
|
| a. Amount wrongfully deducted in running bills for using lesser quantity of cement in M20 concrete: 5003.93 cu.m. @ Rs.125.57 cu.m. | 6,28,343 |
|
| b. Interest on the above amount @ 24% per annum from the respective dates and on the respective amounts as per the running bills |
|
|
| a. Rs.29,477.56 from 31.01.2000 (RA Bill No.1) |
|
|
| b. Rs.1,65,134.59 from 29.02.2000 (RA Bill No.2) |
|
|
| c. Rs.73,555.14 from 25.03.2000 (RA Bill No.3) |
|
|
| d. Rs.1,61,364.99 from 29.04.2000 (RA Bill No.4) |
|
|
| e. Rs.1,25,060.00 from 31.05.2000 (RA Bill No.5) |
|
|
| f. Rs.37,453.76 from 30.06.2000 (RA Bill No.6) |
|
|
| g. Rs.14,209.50 from 31.07.2000 (RA Bill No.7) |
|
|
| h. Rs.21,699.76 from 31.08.2000 (RA Bill No.8) |
|
|
| c. M 25 concrete 1219.52 cu.m. @ Rs.28.91/cu.m | 35,256 |
|
| d. Interest on this amount at 24% per annum from the respective dates and on the respective amounts as per the running bills |
|
|
| a. Rs.14,507.00 from 30.06.2000 (RA Bill No.6) |
|
|
| b. Rs.8,896.18 from 31.07.2000 (RA Bill No.7) |
|
|
| c. Rs.11,852.52 from (RA Bill No.8) |
|
| 2. | Claim No.2 |
|
|
| a) The idle charge | |
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