TMI Blog2010 (8) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... e Consultant/Engineers who, by virtue of Clause 5.2.1 of the Contract, are empowered to resolve ambiguities, omissions, errors, faults and other defects in the Drawings or any other Contract Document as perceived by the Contractor (Respondents before us). The Contractor had approached the said Engineers‟ to decide the question of whether the Contractors/Respondents were entitled to claim escalation on the Contract Work. The Appellants had adopted the view that they were not liable to pay escalation and price variation on the original quantity of work contracted as per Bill of Quantity (BoQ) items but only on deviation in work provided for in Clause 60.1(d). This stand is taken even though indubitably the period within which the Contract was to be completed was spread over thirty-two months and was for a value of ` 1,46,00,000,00/-. The Engineers had, on an interpretation of the Contract, decided that the Contractors/Respondents were entitled to escalation even on BoQ items. The Respondents had, in accordance with the re-worked formula for calculating the escalation, claimed a sum of ` 1,55,87,88,905/-; but the Engineers had quantified and found due and payable by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar, learned counsel for the Respondents, the sharp turnaround was the consequence of the advisory dated 20.5.2004 issued by National Highways Authority of India that escalation/price variation is not available in those agreements where it is not found in the express language . What transpires is that after making the payments of escalation upto the 27th Running Bill, the somersault of the Appellants led to their making recoveries of amounts already paid from the subsequent Bills presented by the Respondents. 7. It is obvious that the interpretation of the Contract forms the fulcrum of the dispute between the two adversaries before us. As already mentioned, the power to interpret the Contract was reposed in the Engineers‟ as per Clause 5.2.1. of the Contract. The Engineers, on a thorougher and lucid examination of the contract, have concluded that escalation was contractually payable on the Contract itself as well as on any variation thereto. Even under the regime of the repealed Arbitration Act, 1940, their Lordships have opined in the celebrated Judgment of Sudarsan Trading Company -vs- Government of Kerala, (1989) 2 SCC 38 that - Once there is no dispute as to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, it is held that the arbitrator had the jurisdiction, no further question shall be raised and the court will not exercise its jurisdiction unless it is found that there exists any bar on the face of the award. 114. The above principles have been reiterated in Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders Contractors, AIR 2004 SC 1330, Union of India v. Banwari Lal Sons (P) Ltd, AIR 2004 SC 1983, Continental Construction Ltd. v. State of U.P., (2003) 8 SCC 4 and State of U.P. v. Allied Constructions, (2003) 7 SCC 396. 8. In the case before us, the Arbitral Tribunal has unequivocally upheld the interpretation of the contract expressed by the Engineers‟ who have been contractually empowered by the parties to impart meaning to the sundry clauses of the subject Agreement. 9. It would be perilous and constitutionally unjustifiable to ignore and lose sight of Parliament‟s endeavour to curtail curial interference in arbitration awards. Section 34 of A C Act does not contemplate the existence of errors on the face of the Award, which the Supreme Court has clarified to be beyond judicial interference. The learned Single Judge has, in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Bidding Date Sub-clause 14.4, ITB Sub-clauses 14.4 and 31.4, Sub-clauses 70.1, 70.2, 70.6 and 70.7 and 70.8, 60.1 and 60.2 of COPA, the conclusion is inevitable that all these clauses are consistent and provide that price adjustment is payable on the entire work comprising all BOQ items including variations and daywork except where such variations and daywork are otherwise subject to adjustment (that are valued at current prices). All these sub-clauses corroborate one another and are in complete harmony except for sub-clause 70.3 which has ambiguity and errors as explained in para 1.5.4. 1.12.3.5 We have considered the contentions of both the parties. In our view, the National Highways Authority of India (NHAI), the author of the Contract document, was conscious of the fact that tender documents are not perfect and mistakes may have occurred. Words used in clause 5.2.1 are ambiguities , omissions , errors faults and other defects in the Drawings or other Contract Documents. Under this clause the Engineer was given enabling power. The Engineer can resolve the ambiguity or correct the error or supply the omission to remove contradictions and inconsistencies. By doin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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