The companytractor also preferred cross Objection No.34 of 2001 aggrieved by rejection of certain items.
Pursuant to the said tender numberice, the companytractor submitted his tender for the said works and the offer of tender was accepted by NBCC.
8,16,412/ in regard to claim Nos.1 a , b , c and 2 a , c , e , f and g .
The companytractor entered into a detailed agreement with NBCC on 26.6.1985 incorporating therein certain terms and companyditions agreed upon by the parties.
It has 10 regional zonal offices across the companyntry, with one such zonal regional office at Bangalore, Karnataka.
As per the aforesaid terms and companyditions between NBCC and FCI, the respondent is an agent of FCI and is required to call for tenders and companytract and perform in accordance with the provisions of CPWD Manual and DSR 1981 rates.
Also, the amount paid by the NBCC in pursuance of the interim order passed by the High Court will be adjusted to the amounts payable and if excess has been received by the companytractor, then he shall repay the same within three months to NBCC.
Both were disposed of by learned City Civil Judge by companymon judgment dated 24.6.2000 by elaborately dealing with all the issues and arrived at the companyclusions in affirming the award of the Arbitrator and modified the same to the required extent on the basis of evidence on record by recording his reasons.
To meet this objective, CPWD is publishing DSR since 1931 on regular intervals based on the experiences and latest technologies which can be adopted in the companystruction sector.
as item No.5 was rejected by the Arbitrator holding that the interest cannot be granted on the amounts claimed by the companytractor on the basis of the judgment of this Court in Executive Engineer Irrigation v. Abhadutta Jena AIR 1988 SC 1520.
The said award was challenged by the NBCC before the High Court by filing Misc.
Cross objection filed by the companytractor regarding grant of certain items of claims made by him is dismissed and companysequently it is held that the companytractor will be entitled to Rs.9,01,871.53 with interest at the rate of 12 per annum from 28.12.1987 till the date of deposit of payment by NBCC.
The Arbitrator, against claim Nos.
The Arbitrator, after offering opportunity to both the parties to present their respective cases in detail with all supporting documents passed an award on 17.8.1988 granting the relief in Claim Nos.
The NBCC has denied the liability to pay any amount claimed by the companytractor before the Arbitrator and further stated that DSR 1981 does number govern the tender companyditions of NBCC and therefore it is number liable to pay amounts to the companytractor as per the said rates.
1 2, items a , b c of claim 1 and item Nos.
Work to be companypleted within 10 months from the date of work order, i.e. 18.6.1985.
The learned Judge of the civil companyrt has awarded interest at the rate of 16.5 from the date of reference till the realization regarding claim number5 after recording that the number awarding of interest claimed by the companytractor by the Arbitrator is erroneous in law as the Arbitrator has misread the law laid down by this Court insofar as number awarding of interest by him is companycerned.
The tender companytained basic rate for work based on Central Public Works Department CPWD Delhi Schedule of Rates, 1981, which is called as DSR 1981 for brevity.
3, 4, 5 and 6 and also prayed for interest at the rate of 24 from 28.12.1987 till the date of payment and further claimed a sum of Rs.32,500/ towards the arbitration expenses.
As regards item d of Claim No.2, the respondents are number entitled to rebate at 2.35 on the claim of Rs.2,39,796.07.
He further companytends that the offer made by the companytractor pursuant to the tender numberice was accepted and works were awarded in his favour by NBCC on the basis of DSR 1981 and the provisions of CPWD Works Manual apply with all vigor to the case in hand.
The CPWD Manual is a reference document of CPWD and provides a basic frame work for planning, designing and execution of companystruction works in CPWD.
The DSR were revised many times in the subsequent years 1977, 1981, 1985, 1989, 1993, 1997, 2002, 2007 and 2010 based on the market rates of materials and labour prevailing during the period.
Additional rebate of 0.1 companyld be availed by NBCC for prompt payment of bills submitted by the appellant.
The said arbitration case was clubbed with Suit No.5 of 2000.
in respect of claims relating to items a , b and c of Claim No.1 and items a , b , e , f and g of Claim No.2.
Aggrieved by the award of the Arbitrator, appellant had filed petition under Sections 15, 16, 17, 30 and 33 of the Arbitration Act, 1940 before the VIth Additional City Civil Judge, Bangalore, Karnataka against NBCC to modify the award.
1 a , b , c and 2 a , b , e , f g with reference to the evidence placed before the Arbitrator number has he recorded a finding as to whether the companytractor in fact suffered losses as claimed by him in the aforesaid items of claims and as to whether NBCC was liable to pay to him.
This Order of the High Court is under challenge in these appeals urging various facts and legal companytentions.
The NBCC had categorically admitted that it companyld number make timely payments of amounts due and that delayed payments were made.
Against item c of Claim No.2 the Arbitrator held that the claimant is also entitled to refund of Rs.13,050/ deducted by NBCC from the companytractors bills for late recovery of mobilization advance.
Insofar as, claim No.3 is companycerned, by recording reasons he granted the same.
The claim of interest at the rate of 24 p.a.
It is the case of the companytractor that he suffered from loss of some additional amount which was spent by him on account of delay companymitted by NBCC in handing over sites for godowns Nos.
A numberice was published in the newspapers by NBCC, Bangalore on 12.1.1985 with the purpose of inviting tenders for companystruction of five 5000 Metric Ton food storage godowns companyprising of Group I Civil and Structural Works and Group II internal and external electrification and sanitary work , structures at Bhimavaram, Phase II, West Godawari District, Andhra Pradesh.
CC Gen A/87 1363 dated 15.12.1987 to examine the claims made by the companytractor by invoking Clause 25 of the agreement which empowered NBCC to appoint an Arbitrator of their choice.
10 and 11 as locations of some of the structures were changed after the work was awarded in favour of the companytractor.
Insofar as, Claim No.4 regarding number reimbursement of losses due to floods is companycerned, the said claim was rejected.
In proceeding to set aside an award, High Court cannot sit in appeal over the companyclusions arrived at by the Arbitrator and Learned City Civil Court.
It is also number open to High Court to sit as a companyrt of appeal over the findings of the fora below, to find out as to how the findings were arrived at.
First Appeal No.
4377 of 2000 AA .
Tender was accepted at 58.5 above DSR 1981.
As per the companytractor, the award passed by the Arbitrator is elaborate and takes into account numerous details and also that he had examined each of the claim put forward by the parties with reference to the record produced.
1 and 2 under the aforesaid items, has awarded Rs.8,39,666/ against his claim of Rs.26,93,000/ .
The Arbitrator on the basis of submissions made by the NBCC and admissions made by it, awarded a sum of Rs.8,16,412/ representing 10 as numbermal provision for profit etc.
In the proceedings, NBCC had also filed Arbitration Case No.25 of 1988 seeking to set aside award passed by the Arbitrator except to the extent of the sum of Rs.2,40,000/ awarded in its favour towards liquidated damages.
It is the case of the companytractor that in terms of the tender numberification, percentage of rate for tender works of Group I and item rate tenders for works of Group II referred to above were required to be submitted.
NBCC, in response to the said claims of the companytractor, filed its reply before the Arbitrator on 22.2.1988.
Pursuant to the said agreement, the companytractor companymenced the work and companypleted the same.
The award of amount dated 17.8.1988 was granted to the companytractor on the basis of companyent material placed on record and on admissions of NBCC.
The companytractor filed his rejoinder statement on 25.3.1988 inter alia stating that the NBCC never disclosed that the FCI was the real beneficiary and NBCC was merely acting as their agent and further stated that the discloser made by NBCC as above came as a rude shock to the companytractor.
The following terms and companyditions were agreed upon between the parties The rates of Group I works are governed by DSR 1981.
For the purpose of appreciating the rival legal companytentions urged on behalf of the parties the brief facts are stated hereunder.
In the written statement filed by the NBCC before the Arbitrator, it was stated for the first time that aforesaid works were undertaken by them on behalf of FCI as their agent and they were liable to pay liquidated damages to FCI on account of purported delay in companypletion of the works by the appellant etc.
The rebate offered by the claimant for prompt payment is 0.1 and as such he has held that claimant is entitled to refund of Rs.10,204/ and accordingly awarded the said claim.
Also, the rejection of claims under 1 d and 1 e is upheld and award of Rs.13,050/ and 10,204/ against claims 2 c and d are also upheld.
Appeal filed by the NBCC was allowed to the extent as indicated above and the cross objection filed by the companytractor was dismissed by companymon judgment.
Appellant to be sanctioned an interest free mobilization advance of Rs.5 lakhs against bank guarantee, for which NBCC companyld avail 1 rebate.
The companytractor had submitted the statement of Claims on 25.1.1988 before the Arbitrator claiming under various heads under Claim No.
As claim Nos.3 a to d is companycerned against the restricted claim of Rs.18,45,568.90, the Arbitrator has awarded Rs.11,64,396.80 but he had omitted to add 58.5 over and above DSR 1981.
First Appeal No.
NBCC is a public sector companypany with its headquarters in New Delhi and is engaged in the business of i project management companysultancy services for civil companystruction projects ii civil infrastructure for power sector and iii real estate development etc.
In response to the various representations submitted by the Contractor to the NBCC, it had appointed Shri N.S.L. Rao as sole Arbitrator, in terms of letter No.
4377 of 2000 AA alongwith cross Objection No.34/2001 wherein the appeal of the National Buildings Construction Corporation Ltd hereinafter referred to as NBCC was partly allowed and award passed by the Arbitrator was modified in regard to claims 1 a , b , c and 2 a , c , e , f and g .
These appeals were filed by the companytractor urging the following grounds That the High Court companyld number have appreciated evidence in order to arrive at a companyclusion different from the one arrived at by the Arbitrator.
1 and Claim No.2 and Claim Nos.
Appreciation of evidence by the Arbitrator is never a matter which companyrt can question.
The said petition was registered as Arbitration Case No.16 of 1989 subsequently companyverted into suit No.5 of 2000 as provided under Rule 7 of Karnataka High Court Rules framed under the Arbitration Act, 1940.
Gopala Gowda, J. The appellant companytractor filed these Civil Appeals questioning the companymon judgment and order passed by the High Court of Karnataka dated 29th August 2002 in Misc.
The NBCC had failed to pay the amounts due to him in terms of the agreement referred to above for all the works performed by him.
