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TMI Blog2007 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... : whether Jala Nigam could be allowed to raise the contention, on the facts and circumstances of this case, that Clause 29 of the Contract(Agreement) is not an arbitration clause and due to want of jurisdiction of the arbitral tribunal to adjudicate upon the claims made by the contractor (respondent no.1), Award dated 25.6.2000 published on 14.11.2000 was a nullity. The second issue is regarding the merits of the claims made by the contractor. The facts giving rise to the above civil appeal are as follows. On 27.11.93 Agreement bearing No.41/93 was entered into between Jala Nigam and the claimant (respondent no.1) concerning construction of Mulawad Lift Irrigation Scheme. The contract was for 36 months. It was to be completed by 26.11.96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Engineer's decision in respect of every dispute or difference so referred shall be final and binding upon the Contractor. The said decision shall forthwith be given effect to the Contractor shall proceed with the execution of the work with all due diligence. (c) In case the decision of the Chief Engineer is not acceptable to the Contractor, he may approach the Law Courts at (*) for settlement of dispute after giving due written Notice in this regard to the Chief Engineer within a period of ninety days from the date of receipt of this Written Notice of the decision of the Chief Engineer. (d) If the Chief Engineer has given written Notice of his decision to the Contractor and no written Notice to approach the Law Court has been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Vide impugned judgment dated 28.1.2005 the appeal stood dismissed. Hence this civil appeal. Mr. C.S. Vaidyanathan, learned senior counsel for Jala Nigam, contended that the above-quoted Clause 29 of the Contract was not an arbitration clause and, therefore, the proceedings before the Arbitrator stood vitiated for lack of jurisdiction. He contended that the proceedings before the Arbitrator were without jurisdiction for want of arbitration agreement which cannot be cured by appearance of the parties, even if there was no protest or even if there was a consent of Jala Nigam, since consent cannot confer jurisdiction and, therefore, the impugned Award was null and void. Learned counsel submitted that though the plea of "no arbitration claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.9.99 passed in C.M.P. No.26/99. Suffice it to say that both the parties accepted that there was an arbitration agreement, they proceeded on that basis and, therefore, Jala Nigam cannot be now allowed to contend that Clause 29 of the Contract did not constitute an arbitration agreement. Before concluding on this issue, one clarification needs to be mentioned. On 26.7.2005 a three-Judge Bench of this Court has referred the question involving interpretation of Clause 29 of the Contract to the Constitution Bench in the case of M/s. P. Dasaratharama Reddy Complex v. Government of Karnataka and Another \026 Civil Appeal No.1586 of 2004. Placing reliance on the said order, learned counsel for Jala Nigam submitted that the hearing of this civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry the interest regime has changed and the rates have substantially reduced and, therefore, we are of the view that the interest awarded by the Arbitrator at 18% for the pre-arbitration period, for the pendente lite period and future interest be reduced to 9%. As far as idling charges are concerned, the Arbitrator has awarded Rs.42,000/- per day for the period 1.2.94 to 17.12.94 and from 1.6.95 to 31.12.95 excluding the period 18.12.94 to 31.5.95 and from 1.1.96 to 12.11.96. On this basis the idling charges awarded by the Arbitrator was arrived at Rs.1.47 crores. It is contended that the contractor has not led any evidence to show the existence of the machinery at site and, therefore, he was not entitled to idling charges. We are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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