TMI Blog2017 (3) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... he various items listed at Serial No.5 Establishment and Administrative Expenses of site (5%) as well as depreciation and maintenance of tools and plants (2%), were relevant for over run charges as a result of extended maintenance and running of site. Since the Respondent had asked only for 5% of the contract value as over run charges, the Arbitrator awarded only that amount and that too only up to 27th May 2009 i.e. for a period of three months beyond the original completion date. The amount of over run per month charges was calculated @5% of the contract value divided by the original contract period and thus worked out as ₹ 1,59,731 per month. This was then multiplied by the period of over run i.e. 10 months. This worked out to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the disputes between the BHEL and the Respondent Teknow Consultants Engineers Pvt. Ltd. arising out of a work order dated 12 th February 2007 issued by BHEL in favour of the Respondent for for execution and handing over of Civil works of switchyard and transformer yard for M/s. Neyveli Lignite Corporation 220/33 KV substation at Barsingsar in Rajasthan. 2. The clauses of the work order relevant for the present purposes are as follows: (i) Under Clause 3.1 the total contract price was ₹ 5,11,14,000. (ii) Under Clause 3.2 the actual payment to be made to the Respondent was based on measurement taken at the site and verified by the Engineers of BHEL as per the unit rate agreed between the parties. (iii) Under Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 on the same basis. 4. On 30 th April 2009, the Respondent applied for a further EOT till 31 st August 2009. There was delay BHEL responding to this request. On 22 nd June 2009, BHEL wrote to the Respondent complaining of the slow progress in the work and asking the Respondent to take immediate action to get the work started by 23 rd June 2009 failing which they would have no choice to take suitable action as per the contract agreement. This was reiterated by BHEL by its letter dated 28 th June 2009. 5. By its letter dated 28 th June 2009 the Respondent informed the Petitioner that the EOT had been granted by BHEL till then for the convenience of BHEL. The Respondent did not accept or agree to any work to be done thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Award, the learned Arbitrator is granted interest @ 13% per annum from 1 st July 2009 till the date of the Award and up to the date of payment. If the payment was beyond 90 days from the date of the Award then interest @ 18% per annum from the date of payment till realisation. To repeat, only the above two items have been challenged by BHEL in the present petition. 11. Mr. Sanjeev Anand, learned counsel for the Petitioner submitted that there was no occasion for the learned Arbitrator to have granted the claim for over run charges. It was submitted that each of the EOT was granted without any financial implication to BHEL and, therefore, the question of BHEL having to pay such over run charges did not arise. According to Mr. Anand, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and, therefore, the total over run charges actually allowed was ₹ 10,76,084. 14. The Court finds that there is no legal infirmity whatsoever in the impugned Award insofar as the above allowing of the claim for over run charges is concerned. No ground has been made out under Section 34(2)(b)(ii) of the Act in this regard. 15. However, as regards the award of pendente lite interest, learned counsel for the Petitioner is right in his contention that under Clause 5.7 no pendente lite interest could be granted. The Award to the extent that it has awarded pendente lite interest is contrary to the express terms of the contract and is hit by Section 28(3) of the Act. The Award to this extent is opposed to the fundamental policy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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