460 CR No 4217of2001601 1 IN THE HIGH COURT OF PUNJAB 8 HARYANA CHANDIGARH CR No 4217 of20620c0M1 Date ofDecisionMarch 182011 Union ofIndiaand others Petoners 1 0 Versus 0 0 1 IC5 I Puran Chand Diwun and another 7espondents Z Coram Honble Mrs Justice Sabinu I Present MrRajivShannaAdvocate for thepetitioners Z MrManohar LalAdvocate for thc C0 88 7 Z Sabina Je 0 Puran Chand Diwan filed a petitionthat the award dated 243 1 995 passedbythe Arbitrator be madcrule of the Court The Senior Sub Judge and decreedated108998 hcld as underl In view of my flndingson the aforementionedISSUCS the objection petitionofthe objectorUnion ofIndia is partlyaccepted to the extent 1 that the award ExO2 givenbythe arbitratorin respectof clailn no l is not legalandtherefore the objectionpetitionof thc objectorin respectof the claim nol is accepted and the remainingpart of the Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 461 CR No217 of2001608zM1 2 awardExe2 is made a rule of the court The contractor would be entitledto get interest 1210per annumfrom the date of decreetill in respectof the remaining portion of the award A decree sheet be accordingly and file be consigned to the record rOOm bythe saidjudgment anddecreeboth the sides Sled thc appeals Vide and decree dated 273002 the Additional District Judge 4 1 allowedthe appealfiled by Puran Chand Diwan and dismissed thc appeal 0 0 Gledbythe Union oflndia and Others the awardpassedby I C9 theArbitrator was made rule of the Court Hence the presentpctitionby I the Union oflndia and others Z Leamed counsel for thepctitioners has submittedthat as per clause l l C9 ofthe agreementexecutedbetweenthepartiesthe contractorcould not have been granted qua the delaywhich had occurred on I account ofextensionsoughtbyhim to complete the work In supportofhis Z learned counsel has placedreliance on Ramnath International m Construction IPI Ltde VSe Union of India 620071 2 Supreme Court Cases 7 Z 453 wherein it was held that the Arbitrator could not havc allowed in view of specificprovisions in the agreementi Clause 11 C9 There was a specificbar againstthe award of damages on accountofdelay Hence the Arbitrator had exceededhisjurisdiction Learned counsel for the on the other hand has submitted that the Arbitrator had the powcr to grantcompensation to the contractor Oll account ofdelayin completion ofthe work allotted to him Leamed counsel has subinittedthat in Mls ShvamaCharan Aarwala 8i Sons VSUnion of India 199919ArbR 483 View had been taken by thc BombayHigh Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 462 CR No 4217of2002 6O2kMI 3 Court that in VlCW of clause 116C1as in the presentcase 1of thc contract neither party to the agreementwas entitled to claiin or otherwise howsoever arising as a result of extensions grantedunder conditions6A1and 6B1of Clause 11 The ApexCourt in SpecialLeave to Appeal6civill No 7571986 Ied in the abovesaid case had set aside the passedby the I ligh C6urt and it was held that therc will be a decreealso in respectofclaim 80fthe award Learnedcounsel for the has further placedreliance on 0 0 the judgmentof the Apex Court in KRZaveendranathan VSe State of I C5 Kerala and another 61996910 Supreme Court Cases 35 wherein the matter I was referredto threeJudgesBcnch for decision ln view of conflicting Vlews Z in Hindustan Construction Co Ltd vse State of Jammu and Kashmir 2 C 199294SCC217 and Associate Enee Coe vse Govte ofAeP SCC I 93 The view taken in Sudershan Tradine Coe vs Govte ofKerala 619899 2SCC 38 was approved in Hindustan ConstructionCompany lpral The Z threeJudgesBench of theApex Court in KRRaveendranathan vseState m of Kerala 6199899 SupremeCourt Cases 410 approved the view taken tll 7 Z HindustanConstructionCompany Ltd Caselpra9 C1ausel1039and 1lB9 ifthe works be delayed 6a1by reason of nonavailabilityof Government stores mentionedin Schedule B or bl by reason of nonavailability or breakdown of Govt Tools andPlant mentioncd in Schedule C then in any such event the provisionshereinbefore contained the GE lnay in his discretiongrantsuch cxtension of timc as may appearrcasonableto him and the Contractor shall be bound to Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 463 CRN042170f20616OM 4 the Works within such extendedtiine ln the event of the r Contractor not agreeingto the extension grantedby the Garrison the matter shall be referred to the Acceptingofflcer or CWE in case of contract acceptedby Garrison Enginecr9whose decisionshall be flnal and binding 0 No claim in respectof or otherwise howsoever m arisingas a result of extensionsgranted under Conditions Al and B9 aboveshall be admitted 0 0 As per clause 70 of the agreementexecutedbetween the paltiesall I t5 between the partiesto the contractshall be referred to the sole I arbitratorof an officer appointed by the authority mentioned in the tender Z documents In the presentcase the questionthat requiresconsideration is only quaclaim no ofthe awardwhich readsas underl I t0 S ofclaim Findings Award Z amountofclaim N f 0 For reimbursement of claim 2226500 V7 Z suffered on account of Depttssenous partly breach of the contract includingdelayin sustained tl handingover of sites and issue of Schedule B stores revlSlOtl 111 layout numerouschanges in scope ofwork delay lll giving decisions obstructionslhindrancescaused by other agenciesdelayin placingwork ordersfor provisionallumpsum itelns and Prime cost sum ltems etc resultingin abnormal ofthe contract period 1 Amount ofclaim Rs33453000 Admittedlythe awardpassedbythe Arbitrator is a nonoeakingaward Learned counsel for the petitioners has placedreliance on the view 1J takcnbytheApexCourt in RamnathInternationalConstruction6P9Ltdcase Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 464 C CR No1217 of2002 OMl 5 9 6supral The Apex Court had placedreliance on the view taken in Associated EnggCo case supralwhereasthe learned counsel for the hasarguedthat the view takenbythe ApexCourt in Associated EnggCo casesupravas not approved bythreeJudgesBench ofthe Apex Court in a later decision The legalpositionafler goingthrough the relied uponby the learnedcounsel for thepartiesthatemerges is thatthere were two views by the Apex Court qua similar disputein questionThe Apex 0 0 Court in Associated Engg Co case supra9had held that ilo I C9 could be allowed qua any dclaysor any hindrances causcd by any I Department ln vlew of the specificavailable bar in this regardThe said Z Vlew was relied upon by the Apex Court in Ramnath International Construction6P9Ltd casesupral The matter was referred to threeJudges I Bench In the said case it was orderedbytheApexCourt as undcr r After spending considerabletimein this case on thequestion of law Z namely whether the arbitrator had exceeded hi s jurisdiction 111 ao awarding the amount in questionthe counsel on either side placed 7 Z reliance on SudarsanTradingCo v Govt OfKerala and to the contra Clm positionthe counsel appearing for the Stateof Kerala placedreliance on Associated Engg Co v Govt ofAP Prima facie we are of the Vlew that the view in these two decisions are mutuallyconllicting Shri AS lVambiar learned Senior Counsel has placedreliance on llindustan Construction Co Ltc StateofJ cK in which theratio lll Sudarsan TradingCo Govt of Kerala was practicallyapproved SudarsanTradingCo case was not brought to the notice of the Court 111Associated Engg Co case But however in view of thc apparent Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 465 CR No 4217 6 r conflict of the abovesaid decisions we deem it expedient that the matter may be referred to a three JudgeBench for decision The Registryis directed to post this inatter before a Bench comprising threeHonble Judges 79 Thereafter the matter was listed before three JudgesBench of thc Apex Court In the said case it was held as underl 1 1 Specialleavegranted r The learned counsel for the appellantpointsout that the 0 U questiOOin lSsue 111the presentappealsis squarelycovered by I C5 the decision ofthis Court in HindustanConstruction Co Ltd V I Stateof J8K In particularit drew our attentionto para 10 of Z the judgmentand the portionextracted from the decision Ill Sudarsan TradingCo case wherein it was said that by purporting to construe the contract the Court could not take I upon itself the burden of sayingthat this was contrary to the Z contract and as sucloeyondjurisdictionThat is exactlywhat Qo the Court has done in the instant case Therefore the 1SSUe 7 Z standscovered by this decisionand the learncd counsel for the Qm could not in the face of this decision argue otherwise 3 n the result we allow these appealsand set aside the impugnedorder of the Division Bench of the High Coun with no order as to costs 59 Thus the view takenbytheApexCourt in Hindustan Construction Co Ltd was approvedSimilarly in Mls Shyama Charan Agarwalac0 Sons case supraltheBombayHighCourt had takenthe view that once thc extensions Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 466 CR No 4217of2001 6OcM 7 were coveredunder clause 396similarclause in the presentcaselof the 7 then under clause 116C9 nilar clause in the prcsentcase neitherpartywas entitled to claim The BombayHighCourt was dealingwith claim No 80f the statement of the claim Oled by the Contractorbefore the Arbitrator In appealfiled bythe Contractor before theApexCourt vide order dated07091998 it was held as underl Delay condoned Specialleavegranted 0 C3 In view ofthe decision ofthis Court in KR2avindran Vs Stateof I C5 Kerala 61996109SCC 35 the appealis allowed and the impugned I judgmentand order of the High Court is set aside There will Z betherefore a decreealso in respectofclaim No 80fthe award7 Thus the question involved in this case is no longerres integ7aThe Apex 0 Court has held that the Arbitrator could award the claim soughtby the I r contractor on account of suffered on account of delayn Z thesecircumstances no interferenceby this Court is called for 00 Dismissed 7 Z Om Sabina l Judge March 182011 arya 3 9 6 l Pooja 2012.08.06 14: 39 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document