ORAL JUDGMENT

Date : 22-03-2023 This Civil Revision application has been filed against the Award passed by the Bihar Public Works Contracts Dispute Arbitration Tribunal, Patna in Reference Case No. 101 of 2011 on 24.01.2014 whereby the claim of the opposite party has been allowed in following terms:-

(i) The petitioner shall be entitled to payment of unpaid dues of Rs. 48,27,181/- (Rs Forty eight lakhs twenty seven thousand one hundred eighty one) only as per 5th R.A. and 6th and final bill as unpaid dues with simple interest @10% p.a. with effect from 21.09.2011 till realization.

(ii) The petitioner shall also be entitled to payment of an amount of Rs. 24,66,824/- (Rs. Twenty four lakh sixty six thousand eight hundred twenty four) only deposited as Security Deposit and deducted from the bill with simple interest @ 10% P.A. with effect from

21.09.2011 till realization.

(iii) The petitioner shall also be entitled to payment of an amount of Rs. 1,98,816/- (Rs. One lakh ninety eight thousand eight hundred sixteen) only deducted in the name of extension of time with simple interest @10% p.a. with effect from 21.09.2011 till realization.

(iv) The petitioner shall also be entitled to cost and counsel’s fee as per schedule.

2. Learned counsel for the petitioners submits that the learned tribunal failed to appreciate the fact that an agreement was executed between the Executive Engineer, National Highway Division, Purnea and opposite Party, namely, Ashok Kumar Choudhary on 01.11.2008 for the construction of 3x24 meter H.L.R.C.C. Bridge at Mania on 33th Km of NH-81 for which work order was given vide letter no. 949 dated 15.07.2008 and the work was started on time. It is further submitted that the contractor was instructed to submit work programme vide the office letter no. 645 dated 15.05.2010. In reply to this, the opposite party submitted letter dated 24.05.2010 in which, it is mentioned that he will submit the work programme within three days of receiving of payment. The bill for payment of 3rd R.A. bill has been sent to Regional Office on 28.06.2010 and the opposite party got the payment. Further, it is submitted that the opposite party submitted the work programme vide letter no. NH-81/01 on 17.01.2011 in which, completion period has been mentioned as 31st of March, 2012 which is more than one year of the original agreement. It is also submitted that the revised estimate was sanctioned on 05.07.2010, the department gave a modified work programme to complete programme by 30.09.2011 vide letter dated 08.03.2011 but the work was stopped by the opposite party and it shows that the opposite party was not interested to proceed with the work. It is submitted that petitioners had not undertaken to pay the altered rate to the opposite party as mentioned in the letter dated 21.02.2009 issued by the petitioner No. 2. It is also submitted that the revised estimate submitted by the Chief Engineer, National Highway Wing was modified and sanctioned for Rs. 534.40 lakhs vide Ministry of State Road Transport and Highways vide letter dated 06.07.2010. It is also submitted that in revised estimate only quantity of item was revised and not the rate. The rate will be as per agreement and new items rate will be applicable as S.O.R. at the time of tender. Further, in response to various reasons for slow progress of work given by the opposite parties, the report was submitted by the office of the Executive Engineer dated 13.11.2009 in which, the facts relating to approval of design and drawing approved by the Chief engineer, National Highway Wing, Bihar, Patna on 21.10.2008 had been narrated but the work was not started at the earlier stage. The office letter no. 1718 dated 06.12.2008 shows that the contractor was instructed to start the work in the meantime awaiting the approval of the revised design.

3. The 4th on account bill also had been paid to the opposite party. It is submitted that the opposite party had paid up to date payment against the work on 1