Order On Board

11.08.2021 Heard

1. The case of the petitioner is that pursuant to NIT dated 01.05.2017, the petitioner participated and the tender was accepted on 05.07.2017 wherein the work order was issued on 18.09.2017 and as per the work order, the date of completion period was 18 months.

2. Learned counsel for the petitioner would submit that the petitioner completed his job much before the prescribed period of 18 months i.e. on 17.03.2019 and the work was executed on 12.11.2018. He would submit that since the agreement contains the clause of incentive bonus as per clause 5.3, in case the work is completed before the target date then the contractor would be entitled for incentive bonus from 0.25% (zero point two five percent) to 5% (five percent). It is further submitted that the note appended to would show that the contractor has to give an undertaking in writing that he has “WAIVED” all his RIGHT to claim/demand extension of time. It is further submitted that the petitioner sent a communication on 05.11.2018 which was posted on 26.12.2018 (Annexure P-7) which was much before the completion time period of 17.03.2019. However, the claim for bonus was denied for the reason that the undertaking was given after completion of the work. It is further submitted that the issue was referred initially to the Superintendent Engineer and eventually was decided by the Chief Engineer wherein also the finding though was in favour of the petitioner that he completed the work within time but undertaking has been given after the completion of work, as such, the benefit of clause 5.3 would not be available. It is further submitted that the said finding is completely against the spirit of clause 5.3 which is engrafted in the agreement so that a person executing the contract would not claim the inflated escalated budget for completion of the job and the expense of the State is saved. It is further submitted that since there is no dispute about the completion of the work within time, therefore, this Court would have the jurisdiction and direct the respondents to pass an order to pay the incentive bonus as per clause 5.3.

3. Per contra, learned State counsel would submit that the petitioner after completion of the job gave the undertaking, therefore, it would lose its significance; consequently, the State has disputed the claim of the petitioner. He further submits that as per the agreement clause 28 in case of like nature of dispute, the petitioner can file a petition before the arbitration tribunal and as such no relief can be granted in this petition.

4. Heard learned counsel appearing for the parties and perused the documents.

5. The undisputed facts are that pursuant to NIT dated 01.05.2017, the petitioner's tender was accepted on 05.07.2017 and the work order was issued on 18.09.2017. In the work order, the completion of the job period was of 18 months which would end on 17.03.2019.

6. Clause 5.3 speaks about 'incentive bonus' along with note appended thereto, in case the work is completed within time. For the sake of brevity, clause 5.3 with the note is reproduced herein :

“5.3 Incentive bonus:- Not withstanding the provision contained in clause 5.1 and 5.2 above, if the contractor does not desire “Extension of Time” AND “WAIVES” his right to claim any extension of time and yet – complete the contract (Excluding maintenance period if any) before the original time allowed for completion (as mentioned in the N.I.T or Agreement form “A”) then and then only the contractor shall be entitled to and shall be paid “INCENTIVE BONUS”. The Incentive Bonus shall be paid to the contractor at the rate of 0.25% (zero point two five percent) of the contact price per week of early completion subject to a maximum of 5% (five percent) of the contract price. Part of the week if more than 3 days shall be deemed to be one full week.

Note:- The contractor has to give an undertaking in writing that he has “WAIVED” all his RIGHT to claim/demand extension of time.”

7. Th