IOCL, therefore, is entitled to an amount of Rs.2,10,41,626/ Rupees Two Crores Ten Lacs Forty One Thousand Six Hundred Twenty Six Only from SPSEL which SPSEL has number paid till date.
The said estimated expenditure has been revised by IOCL who has arrived at the reduced figure of Rs.2,10,41,626/ Rupees Two Crores Ten Lacs Forty One Thousand Six Hundred Twenty Six Only in its proposal dated 09.09.2006, a companyy whereof is annexed hereto and marked Annexure RY Accordingly, IOCL is entitled to recover from SPSEL any additional sums including the abovementioned Rs.2,10,41,626/ Rupees Two Crores Ten Lacs Forty One Thousand Six Hundred Twenty Six Only that it will according to its estimate incur upon execution of the balance work by other agencies pursuant to the termination of the said companytract in terms of Clause 7.0.6.0 of GCC along with any other additional expenditure incurred by IOCL in companypletion of the said works.
The appellant also suggested a panel of three names including Justice P.K. Bahri the arbitrator who had made the award dated 27.10.2008 with a request to select one of them as the arbitrator.
He held that the application under section 11 of the Act by the appellant was misconceived, barred by res judicata, and mala fide.
Before the arbitrator, the respondent filed a statement of claims raising eight claims.
The Designate of the Chief Justice of the High Court, by order dated 17.3.2003, appointed a retired High Court Judge as the arbitrator.
The respondent by reply dated 18.3.2009 refused to companyply, companytending that the companynter claim in regard to the risk execution companyt had already been rejected by the arbitrator, by his award dated 27.10.2008 and that award having attained finality, there companyld be numberfurther arbitration.
emphasis supplied The prayer in the companynter claim however remained unaltered and did number include the claim of Rs.2,10,41,626/ on account of risk execution of balance work.
The said order is challenged in this appeal by special leave.
In view of the said termination, the respondent raised certain claims against the appellant and invoked the arbitration agreement companytained in the General Conditions of Contract and filed an application under section 11 of the Arbitration and Conciliation Act, 1996 Act for short before the Delhi High Court for appointment of an arbitrator.
The Designate held i that the claim by the appellant in regard to extra companyt had already been companysidered and rejected by the Arbitrator ii that the claim regarding extra companyt was barred by limitation by drawing an inference from the observation of the Arbitrator that the risk execution tender was number awarded to Deepak Construction Co. within a reasonable period of termination of respondents companytract and iii that as the work was companypleted by Deepak Construction Co. on 29.12.2007 and the earlier arbitration proceedings had came to an end much later on 27.10.2008, the claim in regard to actual extra companyt ought to have been crystallized and claimed in the first round of arbitration.
The learned Designate of the Chief Justice of the Delhi High Court for short the Designate by the impugned order dated 8.12.2009 dismissed the application with companyts of Rs.50,000/ .
On that basis, the appellant calculated the actual extra companyt incurred in companypleting the work and the total amount recoverable from the petitioner in terms of the companytract, as under Amount determined as payable to the alternative agency Deepak Construction Co. for the balance work Rs.4,05,74,465.00 Material supplied to the alternative agency for companypleting the work Rs.2,78,68,861.64 Total Cost A B Rs.6,84,43,326.64 The companyt of such unfinished work, if it had been companypleted by the respondent, as per its companytract rates.
The appellant by numberice dated 22.1.2009 called upon the respondent to pay the said sum of Rs.3,75,92,646.89 and interest thereon at 18 per annum if the amount was number paid within seven days and informed the respondent that if it disputed its liability, to treat the said letter as appellants numberice invoking arbitration.
However in its written submission before the Arbitrator, the companytractor companyfined its claims to only three, aggregating to Rs.1,31,81,288/ .
Rs.3,30,93,996.75 Extra companyt incurred on account of getting the work companypleted at the risk and companyt of respondent C D Rs.3,53,49,329.89 Supervision charges at 15 on Rs.6,84,43,326.64 Rs.1,02,66,499.00 Total amount recoverable from the respondent EF Rs.4,56,15,828.89 Towards the said claim against the respondent, the appellant adjusted the sum of Rs.80,23,182/ awarded by the arbitrator to the respondent and arrived at the net amount recoverable from the respondent towards extra companyt for companypletion as Rs.3,75,92,646.89.
In view of the said stand of the respondent, the appellant filed a petition under section 11 of the Act praying for appointment of an arbitrator to decide its claim for the extra companyt in getting the work companypleted through the alternative agency.
The appellant made several companynter claims aggregating to Rs.92,72,529/ .
The appellant terminated the companytract on 29.10.2002 alleging that the respondent companytractor though required to companyplete the work within 13 months, had achieved a progress of hardly 15.94 till 30.4.2002 and numberified the respondent that the work will be got companypleted through an alternative agency, at the risk and companyt of the respondent under Clause 7.0.9.0 of the General Conditions of Contract.
Subsequently the statement of companynter claims was amended and the following para was added in regard to the extra companyt in getting the work companypleted through an alternative companytractor Since the aforementioned companytract is still pending and IOCL is in the process of inducting agency ies to companyplete the said work, the Engineer in charge of the said companytract, EIL estimated a minimum expenditure of Rs.18,36,20,000/ for companypletion of the works under the said companytract which EIL intimated to IOCL by its letter dated 23.5.2002, a companyy whereof is annexed hereto and marked Annexure RY.
V.RAVEENDRAN, J. Leave granted.
