Vinay Heavy Equipments & Foundation Pvt Ltd vs Oriental Structural Engineers Pvt Ltd & Anr

,

Prathiba M. Singh, J",

The present petition under Section 34 has been preferred challenging the award dated 28th June, 2010 passed by the Ld. Sole Arbitrator who was",

the Executive Director (Retd.) of the Airport Authority of India.,

The Petitioner - Vinay Heavy Equipments & Foundation Pvt. Ltd. was awarded the work “Piling work at Chidambaram Bypass at 301, 302, 303",

& 304â€Â vide Order No.OSE/TNRSP01/PRW-WO/274 dated t h2 9February, 2008. The contract was awarded by the Respondents",

â€" Oriental Structural Engineers Pvt. Ltd. The total value of the work was Rs.1,42,25,000/-. The date of start, as per the contract, was 10th March,",

2008. The work order was accepted by the contractor, however, disputes arose between the parties. The Respondent invoked arbitration and the Ld.",

Sole Arbitrator was appointed.,

The Respondent raised various claims and the contractor raised counter claims which are extracted herein below:,

“Claim No.1 - for a sum of Rs.17,11,250.00 being the advance payment along with interest @ 18% p.a. to be refunded to OSEPL by M/s Vinay",

Heavy Equipments & Foundation Pvt. Ltd.,

Claim No.2 - for a sum of Rs.1,34,434.00 being the amount on account of Crane and Monkey hammer to be paid to OSEPL by M/s Vinay Heavy",

Equipments & Foundation Pvt. Ltd.,

Claim No.3 - for a sum of Rs.1,99,968.00 being the amount for providing bentonite material & for organizing the mixing & swelling arrangements to be",

paid to OSEPL by M/s Vinay Heavy Equipments & Foundation Pvt. Ltd.,

Claim No.4 - for a sum of Rs.50,000.00 being the amount for scrap fabricating material to be paid to OSEPL by M/s Vinay Heavy Equipments &",

Foundation Pvt. Ltd.,

Claim No.5 - for losses and damages on account of delay towards loss of Head Office overheads and profits (Rs.13,65,600.00) and loss of site office",

overheads (Rs.34,14,000.00)",

Claim No.6 - for interest at 18% p.a. from 19.06.2008 until date of payment,

Claim No.7 - for a sum of Rs.2,22,46,643.00 being the penalty levied along with interest @ 18% p.a. from 23.08.08 till date of payment to be paid to",

OSEPL by M/s Vinay Heavy Equipments & Foundation Pvt. Ltd. Claim No.8 - for cost of Arbitration.,

Counter Claims of Respondents,

Counter Claim No.1 - for payment of Rs.10,97,000/-for the work done between 02.04.2008 and 09.06.2008.",

Counter Claim No.2 - for payment of Rs.17,40,000/-towards idle charges for the machineries kept idle at site for want of clearance from",

Claimant’s consultant to erect liner up to depth of refusal level.,

Counter Claim No.3 - for payment of Rs.28,25,600/-as damages.",

Counter Claim No.4 - for payment towards interest on payments due at the rate of 18% per annum.,

Counter Claim No.5 -for cost of Arbitration proceedings.â€​,

The Ld. Sole Arbitrator, under Claim No.1, records the fact that the contractor had been paid mobilisation charges and mobilisation advance to the",

tune of Rs.10,00,000/- and Rs.7,11,250/- respectively, constituting a total amount of Rs.17,11,250/-. The case of the Respondent was that the",

contractor had failed to mobilise the equipment required for completion of the work and in fact it is the admitted position on record that the contractor,

did not stay even for a period of four days at site despite the mobilisation charges and advance having been paid by the Respondent. Considering this,

position, the Ld. Arbitrator came to the conclusion that the contractor is liable to pay back the mobilisation charges and the mobilisation advance paid",

to him after deducting the amount of work actually done by the contractor.,

Claim No.2 of Respondent was rejected. In Claim No.3, the Respondent had claimed a sum of Rs.1,99,968/-. The Arbitrator records as under:",

“4.02 The Respondents, on its part, has admitted (Exh C-12 dated 04.11.2008) their liability for a sum of Rs.99,968.00 on account of cost of",

bentonite material but have denied their liability to the charges for mixing and swelling as they claimed to have done the operation themselves. During,

the oral hearing, I had directed the Claimant to submit detailed analysis of their claim of Rs.1,99,968/-. The Claimants could not submit a detailed",

analysis but orally stated that a lump sum (Emphasis supplied) of Rs.1,00,000/- was charged towards organizing, mixing and swelling arrangement of",

bentonite material.â€​,

In view of the fact that the Respondent could not place evidence supporting the claim of Rs. 1,99,968/-, but the contractor had admitted the liability",

for the sum of Rs. 99,968/-, this claim was allowed by the Arbitrator in the following terms:",

“4.03 I have carefully examined the documents and have heard the Learned Counsels for the parties at length. There is absence of any detailed,

analysis of the claim. In view of the facts and circumstances of the case, and keeping in view the liability admitted by the Respondent for the cost of",

the material, I allow this claim to the extent of the cost of material supplied i.e. Rs.99,968/- together with 10% thereupon pursuant to clause 6.06 of the",

Work Order. This Claim is thus admitted for Rs.1,09,964.80P only.â€​",

The remaining claims of the Respondent were all rejected except claim for interest where interest @12% was awarded.,

In respect of the counter claims, the Arbitrator held that a net amount of Rs.4,33,178/- is liable to be paid to the contractor in view of the work done",

by them. In respect of this claim, the contractor had sought a sum of Rs.10,97,000/-, but the Arbitrator went by the figures given by the Claimant and",

not refuted by the Respondent. The Arbitrator then applied the rates mentioned in the work order and arrived at a sum of Rs.7,28,000/- as per the said",

rates as being payable to the contractor.,

(i) Work done as per Work Order Rates

from March 2008 to June 2008","Rs.7,28,000.00

(ii) Recoveries

(a) Diesel issued and other material

Debits (i/c pile driving hammers)

(b) Crane, Transit mixer and JCB

Charges

(c) Any other expenses incurred By OSE

(TDS 1,113%)","Rs.2,13,490.63

Rs.53,694.18

Rs.27,637.00

Total Recoveries,"Rs.2,94,821.81

Say ....................................,"Rs.2,94,822.00

C. Net Amount due B(i) â€" B(ii),"Rs.4,33,178.00

D. Payment due to Claimant,"Rs.12,78,072.00

From Respondent (A-C) along with simple Interest @ 12% p.a.â€​,