TMI Blog2014 (11) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... can only mean that an award shocks the conscience of the court. It cannot possibly include what the court thinks is unjust on the facts of a case for which it then seeks to substitute its view for the Arbitrator’s view and does what it considers to be “justice”. With great respect to the Division Bench, the whole approach to setting aside arbitral awards is incorrect. The Division Bench has lost sight of the fact that it is not a first appellate court and cannot interfere with errors of fact. An argument was made before the learned Single Judge that there has been a duplication of claims awarded The Single Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail. The appeal is, therefore, allowed and the judgment of the Division Bench is set aside. The judgment of the Single Judge is upheld and consequently, the Arbitral award dated 23rd May, 2005 is as a whole upheld - CIVIL APPEAL NO. 10531 OF 2014 & (ARISING OUT OF SLP (CIVIL) NO.14767 OF 2012) - - - Dated:- 25-11-2014 - Mr. Ranjan Gogoi, And R.F. Narim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entering and shuttering in the said two blocks. b) That by stoppage of work in these two blocks the claimants had suffered hire charges of shuttering due to respondent's lapses and defaults. c) It is further stated that there was no justification for stoppage of work and the action was arbitrary and totally unjust. d) That the detail of this claim has been outlined and appended separately and the same shall from part of the statement of facts. Claim No. 11: ₹ 2,00,000/- payable as damages on account of hire charges of tools plants and scaffolding. a) That due to prolongation of the contract on account of the respondents the claimants had to maintain tools plants, scaffolding etc, during the prolongation of the contract resulting in expenditure for the same. b) That the said articles remained at site beyond the stipulated period and the claimants suffered loss due to the said prolongation. Claim No. 15: Claimants claim damages ₹ 6,25,979/- on account of establishment due to prolongation of the contract. a) That the claimants had contemplated maintenance of establishment during stipulated period of completion but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the detailed break-up of this claim is appended with the statement of facts. 5. Though the challenge to claims 2, 3 and 4 were given up before the Division Bench, they are also relevant and read as follows: Claim No.2: Claimants claim ₹ 1,62,387/- being the reimbursement of statutory increase in labour under clause 10-C a) That the claimants submitted the tender on 6.2.92 and said offer was accepted on 14.5.92. The date of commencement was to be reckoned from 24.5.92. The date of stipulated completion was 9 months i.e. 23.2.93 but the work could be completed on 28.3.95. b) It is further stated that the claimants had submitted the bill for the value to the extent the work was executed till 4.10.94 for a sum of Rs. l,12,067/- as per the formula applicable. c) That the respondents however, did not make a single payment though, the work was executed after submission of the said bill. d) That however, a consolidated bill was furnished the respondents for a sum of Rs. l,62,287/-. Even the said payment has not been liquidated so far. e) That the claimants advised the statutory increase as and when enforced and the claimants also submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.3.95. That there was delay of 25 months in completion of the work beyond the stipulated date of completion. That the Claimants urged that there had been various delays in the execution of work due to the lapses and defaults of the Respondents from the very commencement of work. The progress was held up time and again and the claimants therefore, as back as 17.2.93 advised the Respondents (C-9 page 167) that the Claimants are not interested to execute the work beyond the stipulated date of completion and therefore, their contract be finalized on the stipulated date of completion as the Claimants shall be exposed to incur heavy expenditure in overheads for maintaining establishment watch and ward and tools and plants and other shuttering material but the Respondents did not refute. The chief reasons for delay are highlighted below:- I) Delay in supply of structural and architectural drawings. II) That out of 9 Blocks 2 blocks are abnormally delayed as the site of the said 21 blocks was made available in piecemeal which stretched till 26.2.94 whereas the stipulated completion was 23.2.93. III) Delay in laying the conduit by the electrical agency resulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of contract as they failed to discharge their obligations in time resulting in prolongations did not deny the deployment of the tools and plants and machinery at site besides watch and ward during the prolongation. 7. It is important to note that before the Division Bench, the learned counsel for the DDA conceded that this being a pure finding of fact, he would not be challenging it before the Division Bench. 8. Of the total claim of ₹ 37.28 lakhs, the learned Arbitrator awarded an amount of ₹ 23.39 lakhs. Further, the learned Arbitrator has laboriously gone through all the evidence and answered each claim giving reasons for the same. 9. By a judgment dated 3rd April, 2006, the learned Single Judge of the High Court of Delhi dismissed the objections of the DDA and upheld the award. In an appeal filed under Section 37 of the Arbitration Act, vide the impugned judgment dated 8th February, 2012, a Division Bench of the High Court of Delhi set aside the judgment of the Single Judge on claims 9, 10, 11 and 15, and negatived these claims in toto. Further, claims 12 and 13 were scaled down doing rough and ready justice . Resultantly, the awarded amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court only if- (a) the party making the application furnishes proof that- (i) a party was under some incapacity; or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasons for an arbitral award; to ensure that the tribunal remains within the limits of its jurisdiction; and to minimize the supervisory roles of courts in the arbitral process. It will be seen that none of the grounds contained in sub-clause 2 (a) deal with the merits of the decision rendered by an arbitral award. It is only when we come to the award being in conflict with the public policy of India that the merits of an arbitral award are to be looked into under certain specified circumstances. In Renusagar Power Co. Ltd. v. General Electronic Co., 1994 Supp (1) SCC 644, the Supreme Court construed Section 7 (1)(b) (ii) of the Foreign Award (Recognition and Enforcement) Act, 1961. 7. Conditions for enforcement of foreign awards.-(1) A foreign award may not be enforced under this Act- (b) if the Court dealing with the case is satisfied that- (ii) the enforcement of the award will be contrary to the public policy. In construing the expression public policy in the context of a foreign award, the Court held that an award contrary to 1. The fundamental policy of Indian law 2. The interest of India 3. Justice or morality, would be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) (1) The court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that: (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. (2) The court may set aside the award: (i)(a) if the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, (b) failing such agreement, the composition of the Arbitral Tribunal was not in accordance with Part I of the Act. (ii) if the arbitral procedure was not in accordance with: (a) the agreement of the parties, or (b) failing such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court held: 14. The High Court did not have the benefit of the principles laid down in Saw Pipes [(2003) 5 SCC 705] , and had proceeded on the assumption that award cannot be interfered with even if it was contrary to the terms of the contract. It went to the extent of holding that contract terms cannot even be looked into for examining the correctness of the award. This Court in Saw Pipes [(2003) 5 SCC 705] has made it clear that it is open to the court to consider whether the award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India. In McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, this Court held: 59. Such patent illegality, however, must go to the root of the matter. The public policy violation, indisputably, should be so unfair and unreasonable as to shock the conscience of the court. Where the arbitrator 58. In Renusagar Power Co. Ltd. v. General Electric Co. [1994 Supp (1) SCC 644] this Court laid down that the arbitral award can be set aside if it is contrary to (a) fundamental policy of Indian law; (b) the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Metals Inc. v. Hindustan Copper Ltd., (2006) 11 SCC 245, Sinha, J., held: 103. Such patent illegality, however, must go to the root of the matter. The public policy, indisputably, should be unfair and unreasonable so as to shock the conscience of the court. Where the arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute would come within the purview of Section 34 of the Act. 104. What would be a public policy would be a matter which would again depend upon the nature of transaction and the nature of statute. For the said purpose, the pleadings of the parties and the materials brought on record would be relevant so as to enable the court to judge the concept of what was a public good or public interest or what would otherwise be injurious to the public good at the relevant point as contradistinguished by the policy of a particular government. (See State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77].) In DDA v. R.S. Sharma and Co., (2008) 13 SCC 80, the Court summarized the law thus: 21. From the above decisions, the following principles emerge: (a) An award, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 34 of the Act has said: (SCC p. 727, para 31) 31. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term public policy in Renusagar case [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] it is required to be held that the award could be set aside if it is patently illegal . Fundamental Policy of Indian Law Coming to each of the heads contained in the Saw Pipes judgment, we will first deal with the head fundamental policy of Indian Law . It has already been seen from the Renusagar judgment that violation of the Foreign Exchange Act and disregarding orders of superior courts in India would be regarded as being contrary to the fundamental policy of Indian law. To this it could be added that the binding effect of the judgment of a superior court being disregarded would be equally violative of the fundamental policy of Indian law. In a recent judgment, ONGC Ltd. v. Western Geco International Ltd., 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. 39. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] of reasonableness. Decisions that fall short of the standards of reasonableness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, such decision would necessarily be perverse. A good working test of perversity is contained in two judgments. In H.B. Gandhi, Excise and Taxation Officercum- Assessing Authority v. Gopi Nath Sons, 1992 Supp (2) SCC 312 at p. 317, it was held: 7. ................It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. In Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 at para 10, it was held: 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at. It is with this very important caveat that the two fundamental principles which form part of the fundamental policy of Indian law (that the arbitrator must have a judicial approach and that he must not act perversely) are to be understood. Interest of India The next ground on which an award may be set aside is that it is contrary to the interest of India. Obviously, this concerns itself with India as a member of the world community in its relations with foreign powers. As at present advised, we need not dilate on this aspect as this ground may need to evolve on a case by case basis. Justice The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to ₹ 30 lakhs in a statement of claim before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law of Contract by Cheshire and Fifoot, 3rd Edn., it is stated at p. 279: Although Lord Mansfield laid it down that a contract contra bonos mores is illegal, the law in this connection gives no extended meaning to morality, but concerns itself only with what is sexually reprehensible. In the book on the Indian Contract Act by Pollock and Mulla it is stated at p. 157: The epithet immoral points, in legal usage, to conduct or purposes which the State, though disapproving them, is unable, or not advised, to visit with direct punishment. The learned authors confined its operation to acts which are considered to be immoral according to the standards of immorality approved by Courts. The case law both in England and India confines the operation of the doctrine to sexual immorality. To cite only some instances: settlements in consideration of concubinage, contracts of sale or hire of things to be used in a brothel or by a prostitute for purposes incidental to her profession, agreements to pay money for future illicit cohabitation, promises in regard to marriage for consideration, or contracts facilitating divorce are all held to be void on the ground that the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r corruption. This ground is perhaps the earliest ground on which courts in England set aside awards under English law. Added to this ground (in 1802) is the ground that an arbitral award would be set aside if there were an error of law by the arbitrator. This is explained by Lord Justice Denning in R v. Northumberland Compensation Appeal Tribunal. Ex Parte Shaw ., 1952 1 All ER 122 at page 130: Leaving now the statutory tribunals, I turn to the awards of the arbitrators. The Court of King's Bench never interfered by certiorari with the award of an arbitrator, because it was a private tribunal and not subject to the prerogative writs. If the award was not made a rule of court, the only course available to an aggrieved party was to resist an action on the award or to file a bill in equity. If the award was made a rule of court, a motion could be made to the court to set it aside for misconduct of the arbitrator on the ground that it was procured by corruption or other undue means: see the statute 9 and 10 Will. III, c. 15. At one time an award could not be upset on the ground of error of law by the arbitrator because that could not be said to be misconduct or undue means, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer rejected the cotton, the arbitrators can only have arrived at that result by totally misinterpreting Cl.52. But they were entitled to give their own interpretation to Cl. 52 or any other article, and the award will stand unless, on the face of it they have tied themselves down to some special legal proposition which then, when examined, appears to be unsound. Upon this point, therefore, their Lordships think that the judgment of Pratt, J was right and the conclusion of the learned Judges of the Court of Appeal erroneous. This judgment has been consistently followed in India to test awards under Section 30 of the Arbitration Act, 1940. In the 1996 Act, this principle is substituted by the patent illegality principle which, in turn, contains three sub heads - (a) a contravention of the substantive law of India would result in the death knell of an arbitral award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is a really a contravention of Section 28(1)(a) of the Act, which reads as under: 28. Rules applicable to substance of dispute.-(1) Where the place of arbitration i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, thus, 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. In MSK Projects (I) (JV) Ltd. v. State of Rajasthan, (2011) 10 SCC 573, the Court held: 17. If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such a jurisdictional error needs to be proved by evidence extrinsic to the award. (See Gobardhan Das v. Lachhmi Ram [AIR 1954 SC 689], Thawardas Pherumal v. Union of India [AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f he does so, the decision of the umpire has to be accepted as final and binding. 13. Applying the tests laid down by this Court, we have to examine whether the Division Bench has exceeded its jurisdiction in setting aside the arbitral award impugned before it. 14. A large part of the judgment is an extract from the arbitral award. It is important to note that the Division Bench held: 9. A perusal of the award would reveal, from the portions extracted herein above, that with reference to evidence led before him the learned Arbitrator has held delay attributable to DDA, a finding of fact which is based on evidence and rightly conceded to by Sh. Bhupesh Narula, Advocate who appears for DDA as being beyond judicial review power of this Court pertaining to a reasoned award. But, while awarding ₹ 8,27,960/- the reasoning adopted by the learned Arbitrator is questioned as being the result of ignoring the well-recognized legal principles on the subject, Learned counsel argued that the reasoning is the ipse dixit of the learned Arbitrator. 15. The Division Bench while considering claims 9, 10, 11 and 15 found fault with the application of Hudson s formula which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the contractor's actual head office overhead and profit percentage rather than those contained in the contract. This formula has been widely applied and has received judicial support in a number of cases including Norwest Holst Construction Ltd. v. Coop. Wholesale Society Ltd. [Decided on 17-2-1998, [1998] EWHC Technology 339], Beechwood Development Co. (Scotland) Ltd. v. Mitchell [ Decided on 21-2- 2001, (2001) CILL 1727] and Harvey Shopfitters Ltd. v. Adi Ltd. [ Decided on 6-3-2003, (2004) 2 All ER 982 : [2003] EWCA Civ 1757]. (c) Eichleay Formula: The Eichleay Formula was evolved in America and derives its name from a case heard by the Armed Services Board of Contract Appeals, Eichleay Corporation. It is applied in the following manner: Step 1 Contract billings Total overhead for contract period = Overhead allocable to the contract Total billings for contract period Step 2 Allocable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the contractor i.e. the respondent had a central establishment. It appears to be a case where the contractor is petty contractor and the only expenses incurred are at the site. The claim is towards hire charges paid for centering and shuttering, hiring tools, plants and scaffoldings i.e. the claim is not for the contractor s own equipment lying idle. There is just no evidence that the contractor paid charges as claimed by him. Not a single bill raised by the alleged person who let on hire the equipment to the contractor has been filed nor any evidence adduced for the payment made. Except for listing a 10 HP Water Pump, 4 number 1 HP water pump, 3 mixers, 250 scaffolding bamboos, 150 ballis and 2 vibrators in Annexure-J to the Statement of Claim, no document proving hiring the same and brought at the site has been led. We highlight that the claim is on account of hire Charges paid and there is no evidence of said payment. It does happen that where a work is stopped, the person who taken an equipment on hire returns the same and re-hires the same when work recommences. Thus, Claim No. 9, 10 and 11 cannot be allowed because there is no evidence to support the claims. Damages on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs require to have certain stipulated numbers of works worth large amounts before they can apply for the tender and that their financial soundness has to be attested too by banker s certificate showing that their worth is over 10 crores of rupees. Further, he has pointed out from the statement of claims before the Arbitrator that there was evidence for claims 9, 10 and 11 laid before the Arbitrator which the Arbitrator has in fact accepted. Also establishment expenses were set out in great detail before the Arbitrator and it is only on this evidence that the Arbitrator ultimately has awarded these claims. Mr. Verma is also right in saying that the Division Bench was completely wrong in stating that the establishment expenses pertained to payments for a site at Mayur Vihar as opposed to Trilok Puri which were where the aforesaid houses were to be constructed. He pointed out that in the completion certificate dated 30th May, 1997 given by the DDA to the appellant, it is clear that the houses that were, in fact, to be constructed were in Mayur Vihar, Phase-II, which is part of the Trilok Puri trans-Yamuna area. It is most unfortunate that the Division Bench did not advert to this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prolonged by 25 months. We highlight that though the Arbitrator has found the delay to be 25 months, recompense has been restricted to only 20 months. 20. As noted herein above, partial recompense under Clause 10C, has been granted to the contractor, but the same i.e. the Clause in question requiring applicability during contract stipulated period, it is apparent that the contractor would be entitled to full recompense for price hike during the extended 25 months period and not the 20 months to which the learned Arbitrator has restricted the recompense to. 21. But, for the benefit granted under Clause 10C wherein ₹ 1,62,387/-, ₹ 46,184/- and ₹ 12,922/- have been awarded under Claim Nos. 2, 3 and 4, said amounts have to be adjusted, but not in full, for the reason these include the amounts payable during the contract stipulated period. 22. The total of the three sums comes to Rs, 2, 21,493/-. We have another problem. Neither counsel could help us identify the components thereof i.e. the component relatable to the 9 months during which the work had to be completed and the 25 months during which the contract got prolonged. Thus, we apply the Rule of Rough a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al incorporated in the works, (not being a material supplied from the Engineer-in-Charge's stores in accordance with Clause 10 hereof and/or wages of labour increases as direct result of the coming into force of any fresh law, or statutory rule or order (but not due to any changes in sales tax) and such increase exceed ten per cent of the price and/or wages prevailing at the time of receipt of the tender for the work, and contractor thereupon necessarily and properly pays in respect of the material (incorporated in the work) such increased price and/or in respect of labour engaged on the execution of the work such increased wages, then the amount of the contract shall accordingly be varied provided always that any increase so payable is not, in the opinion of the Superintending Engineer (whose decision shall be final and binding) attributable to delay in execution of the contract within the control of the contractor. Provided, however, no reimbursements shall be made if the increase is not more than 10% of the said prices/wages and if so the reimbursements shall be made only on the excess over 10% and provided further that any such increase shall not be payable if such increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd whether or not any damage shall have been sustained. Specifications and Conditions: 1. The contractor must get acquainted with the proposed site for the works and study specifications and conditions carefully before tendering. The work shall be executed as per programme approved by the Engineer-in-Charge. If part of site is not available for any reasons or there is some unavoidable delay in supply of materials stipulated by the Departments, the programme of construction shall be modified accordingly and the contractor shall have no claim for any extras or compensation on this account. 24. Clause 10C concerns itself with the price of material incorporated in the works or wage or labour increases. It has been seen that claims 9, 10 and 11 have nothing to do with either of the aforesaid subjects. In seeking to apply this clause to claim 15, the simple answer is that this clause will not apply when a claim for damages is made. Further, the Arbitrator considered this clause in detail and only awarded amounts under this clause in excess of 10 percent as required by the clause when it came to awarding amounts under claims 2, 3 and 4, which fell within the ambit of clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ground P, once again makes a reference to the issue that there is overlapping of the claim. I am unable to accept the submission made by the learned counsel. The consequence of delay may have more than one ramifications including the cost of material the supervision required at the site, the inability of the contractor to utilise the manpower at some other place, the inability of the contractor to make, profits from some other contract by utilisation of the same resources. All these aspects are liable to be considered. The Arbitrator has considered the claims separately and has dealt with, claims 9, 10, 11 15 together. Claims 12 13 have been thereafter dealt with on the same principles since it was found that it was not the respondent, who was responsible for the delay for a period of 25 months beyond the stipulated condition of 9 months. 19. There is thus no question of overlapping in different heads and the grievance of the petitioner is rejected. 28. The Single Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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