A contractor seeking compensation for loss of profit or overheads due to contract delays must provide credible evidence demonstrating that the delay was employer-attributable and that specific business opportunities were lost, failing which, claims must be dismissed by the arbitral tribunal.

ORDER

Per: Justice Pradeep Mittal

This Civil Revision under Section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 is directed against the award dated 30/10/2003 passed by the Madhya Pradesh Arbitration Tribunal, Bhopal, in Reference Case No. 25/1996, whereby the claim of the petitioner has been rejected.

2. The undisputed facts reveal that the work of construction of Mahi Subsidiary spill way including balance excavation of approach & spill channel was awarded by Irrigation department to the applicant under Agreement No. 2/1987-88. The contract value was Rs. 154.5 lakhs /-. The work order was issued on 1/2/1988 and the stipulated time for completion was 24 month except rainy season from the work order, with the scheduled completion date falling on 31/10/90 but work continued up to 31/5/1990, Dispute arose between the parties that the part of contract has not been complied with by respondent and non-fixing the rate for extra work. The petitioner approached the tribunal but Tribunal ignored vital documentary evidence, drew unwarranted inferences, and proceeded on the erroneous assumption that the department was not at fault for delay. Incorrect application of the contractual clause relating to extra items led to dismissal of claims. Being aggrieved by the same, the applicant has preferred this revision.

3. Petitioner has taken the following ground in revision that the learned Tribunal has exercised jurisdiction not vested by law and passed the award in a very casual manner. All findings of learned Tribunal are perverse The learned Tribunal has exercised jurisdiction illegally inasmuch as the learned Tribunal has ignored the documentary as well oral evidence and finding given on delay was not attributable to the non-applicant, is wholly perverse. Finding is also perverse to the effect that the petitioner has no right to stop work for excavation of excess quantities. It is also perverse that the delays were not attributable to the non-applicant and the work stood prolonged by contractor and ultimately contract was foreclosed. The applicant was wrongfully burdened with excess interest liability, for which he is entitled to reimbursement.

4. Learned counsel of the respondent has opposed the petition and argued that petitioner was not ready to execute the work as per condition of the contract. Respondents have also suffered a monitory loss for non-execution of remaining work which was under the contract.

The question before us for consideration is as follows:-

"(i) Whether the award of the tribunal is perverse and Tribunal has exercised jurisdiction not vested by law and passed the award in a very casual manner. All findings of learned Tribunal are perverse?"

5. It is reveled from the record that the site was made available to the petitioner in Feb. 1988 and site was handed over to petitioner but the petitioner failed to complete the excavation work even in the extended period. The petitioner was given mobilization advance of Rs. 6.95 lakhs and machinery advance of Rs. 13.90 lakhs in Feb. 1988. The petitioner's machine became out of order for which they sought permission to take away this machine to Bhopal for repair in July, 1989. Due to failure of the machine, the petitioner could not complete the earth work even excavation work in the stipulated period of contract. Since, the petitioner failed to complete the work, he was given first extension upto to 30.6.91 vide Superintending Engineer's letter dated 7.6.90 and again up to 30.6.92 vide Superintending Engineer's letter dated 13.12.1991