A Rein debign Bry by S yoy fron fe oes e wey ErtcevBion 1 BEFORE THE HON’BLE COMMERCIAL COURT , EAST SIKKIM AT GANGTOK, Execution Cane Nob pezn21 Dake a Musard 4 2B/o1 fase 22° 03/2022 Fed euro IN THE MATTER OF:- fr" son ISthapdl dea) . oe 34, 34,248) UNION OF INDIA Seepege Bea! Mee Represented by: Chief Engineer Project Swastik Pin-931717 CIO99APO ed Decree Holder -VERSUS- M/S MX. Infrastructure (P) Ltd. Represented by its Managing Director Shri Kailash Kandoi 4-Agrasen Road, P.O, Siliguri Bazaar Dist. Darjeeling Pin-734005 ~ --—-Judgment Debtor eee AN APPLICATION UNDER ORDER XXI RULE 10/ RULE 11 (2) READ [VIL PROCEDURE.1908, FOR EXECUTION OF AWARD/DECREE DATED 28/01/2020 PASSED BY LD. SOLE ARBITRATOR COLONEL MONISH DASS. Arising out of the matter of Arbitration & Conciliation Act 1996, and in the matter of disputes between MLK. Infrastructures Pvt. Ltd and Union Of India before the Sole Arbitrator. Certified Copy of execution of Award/Decree dated 28/01/2020 is annexed herewith and collectively marked as Annexure I 3 (Colly).I. | Name of Decree Holder [Union oflindin 2. | Name of the Judgment Debtor | M/s MK Infrastructure (P) Ltd. 3. [Date of Decree/Iudgment [28/01/2020 4. [Whether any Appeal was| Yes. Application under section 34 of preferred by the Judgment] Arbitration and Conciliation Act 1996 Debtor is pending before this Hon’ble Court. However, no stay application has been preferred by the JD. 5, | Payment or adjustment made | Rs.43,67,834.59/- (Forty three lakhs (ifany with dates and result) | sixty seven thousand eight hundred thirty four and paisa fifty nine only), as mentioned in the award dated 28.01.2020 itself. 6. | Previous application (with|No application has been filed for dates and result) execution of decree passed in the matter of Arbitration & Conciliation Act 1996. 7. [Amount with interest dues [34,68,686.76/- (Thirty four lakhs sixty upon the Decree or other| eight thousand six hundred and eighty relief's granted there together | six and paisa seventy six only) with with particulars or any Cross | 14% interest PA from 90 days after Decree the date of Award {ill the date of; payment, 8. | Amount of cost, ifany Nil T 9. [Name of the person against | M/S MK Infrastructure(P) Ltd. whom the execution is sought | Represented by its Managing Director for Shri Kailash Kandoi. 4,Agrasen Road, SilighriDist Darjeeling, (WB Pin- 734005, Judgment Debtor for! 14% per annum upto 10J Relief Prayed for Kindly issue Surimons to the execution amount of Rs. 34,68,686.76 and Rs. 4,70,562.04 (interest amount Total amount of Rs. 39,39,248.8 payment of the 5 Apr 2021), 11| Mode in which the assistance | By freezing the Bank account and/or of the court is required from movable and immovable Decree Hol properties of the Judgment Debtor. ider UNION OF IN Represented by Chief Engineet, Project Swastik VERIFICATION I, the above named Decree Holder do'hereby declare that the gontents of above paragraph nos. I to 11 are true to the best of my knowledge aid belief and rest are my respectful submission before this Hon’ble Co Verified at Gangtok, East Sikkim on this the.!5”. day off April 2021 Place: Gangtok rae Holder Date: ff 104/2021 Union of India ‘Through: (SANGITA PRADHAN) Asst. Solicitor General of IndiaBEFORE THE HON’BLE COMMERCIAL COURT, EAST SIKKIM AT GANGTOK Execution Case No. Of 2021 UNION OF INDIA —— Decree|Holder -VERSUS- MIS MK Infrastructure (P) Lid en Judgment Debtor AFFIDAVIT I, Brig $ P Singh, S/o Shri S.A. Singh, R/o HQ Swastik, do| affirm and state as under:- hereby solemnly 1. That I am the Chief Engineer, Project Swastik, Government of India and subordinate to Border Roads Organisation. I have been aul ly authorized by Government of India to file this Execution Petition and contest the present case. Therefore, I am competent to swear this affidavit. 2. That I am the Decree Holder in the instant executios ition and ¥ am well conversant with the facts and circumstances of the case, as such, competent to swear this affidavit. 3. That the contents of Para 1 to 11 of this execution petition are true to the best of my knowledge and belief and the rest are my humhble submissions before this Hon’ble Court. 4, That this petition is made bona fide and for the ends of justice. DEIVERIFICATION I, the deponent named above do hereby verify and declare that the statements made hereinabove at Paragraphs 1 to 4 are true to best my knowledge and belief and nothing false is contained therein and no materifis are concealed there from. And I have sworn this affidavit on this iS day of April, 2021 at Gangtok, East Sikkim, Identified by: DEPS iT© sozsspmpemK 4% IARB Die General Border Roads (E8) Seema Sadak Bhawan Ring Road, Delhi Gantt New Delhi-110010 Chief Engineer Project Swastik PIN: 931717 Ci. 99 APO MIS MK Infrastructure (P) Ltd 4, Agrasen Road Siliguri Dist Darjeeling WB ~734005 pestqueres C39) Chief Engineer - Project Brahmank PIN : 931722 C/O 99 APO ps Jan 2020 ARBITRATION AWARD ON DISPUTE PERTAINING TO CA NO CI «/30/2008- 99 CONSTRUCTION OF IVING SHELTERS, HB STRUCTURES, HB SI 430 _RCG SECTOR UNDER 764 BRIF AGAINST PART iI OF SCH ‘A’ PROJECT SWASTIK ON JAWAHARLAL NEHRU MARG (GN ROAD) IN THE STATE OF SIKKIM 4. Please refer HQ DGBR letter No.25091/DGBR/SWTWARB/03/E8 dated 10 Dec 2017. 2. The arbitration award is enclosed herewith for your necessary action please. 4e4- Enels : As above, colt (Monish Dass) {Colonel [Project Srahmank Kekore ‘ ae: arguing 33¥t ARUNACHAL PRADESH : 657125 ARBITRATION AWARD ON DISPUTE PERTAINING TO _CA_NO_CE(P) ‘SWTK/30/2008-09 Ci TION OF HB LIVING SHELTERS, HB STI Es HB SHEDS IN 130 RCC SECTOR UNDER 764 BRTF AGAINST PART Il OF SCH ‘A’ PROJECT SWASTIK ON JAWAHARLAL NEHRU MARG (GN ROAD) IN THE STATE OF SIKKIM M/S MK Infrastructure (P) Ltd 4, Agrasen Road Siliguri Dist Darjeeling WB - 734005 UNION OF INDIA Represented by: Chief Engineer Project Swastik Pin— 934717 G/0. 99. APO (Referred ag Coniractor/Claimant) AND (Referred as Rebpondent/Department) SOLE ARBITRATOR NK 7A (Mfonish Dass) Colonel iy Project Brahmank_Srguitect S2q1 ARUNACHAL PRADESH | 657126 IN THE MATTER OF ARBITRATION & RECONCILIATION ACT 1996 AND IN THE MATTER OF DISPUTES. BETWEEN . M/S MK Infrastructure (P) Ltd (Referred as Contractor/Claimant) 4,AgrasenRoad Siliguri Dist Darjeeling WB - 734005 > 2 io UNION OF INDIA Represented by: Chief Engineer (Referced/as Project Swastik Respondent/Depariment) Pin~931717 ClO 99 APO. ARBITRATION AWARD PERTAINING TO _CA_NO_CE(P) SWTK/30/2008-09 CONSTRUCTION OF HB LIVING SHELTERS, HB STRUCTURES, HB SHEDS IN 130 RCC SECTOR UNDER 764 BRIF AGAINST PART ll OF SCH ‘A’ PROJECT SWASTIK ON JAWAHARLAL NEHRU MARG (GN ROAD) IN THE STATE OF ‘SIKKIM i 1, Whereas, an agreement was enlered between CE (P) Swastik (Department/Respondent), on behalf of President of India and Tis MK Infrastructure Pvt Lid, 04 Agrasen Road, Siliguri (WB)(Contractor) for construction of HB Living Shelters, HB structures, HB Sheds in 130 RCC Sector under 764 BRTF/ (P) Swastik through contract agreement No. CE (P) Swik/30/2008-09 for Rs. 4,82!26,490/- (Rupees Four Crore eighty two lacs twenty six thousand four hundred ninetylonly) on 23 Mar 2009. The contract was accepted by Chief Engineer(P) Swastik vide Acceptance letter NO,80101/PT-I/02/E8 dated 23 Mar 2009. Scope of work was to construct for the department 108 (One Hundred and Eight Numbers) of mane of various types and2, 3 ‘And Whereas, work order No 1 dated 01 Apr 2009 was issued and handed over to ‘the contractor with date of completion 15 May 2009 against Phase|| (50% of all items) and 29 Jun 2009 against Phase Il (100% qiy of items). 3. And Whereas, the work was not completed as fon_of time at various -exiension of time at various occasions | provisions as under original period of completion and as granted by Accepting OFICar as, pet CA T ] 16 Way 2000-15 Sep 7008 —— | Exersion of tne granted Phase | without financlal effect 30 Jun 2005 15 Nov 2009 = | Exlension of, time , granted Phase Il without financial effect @) | 16 Sep 2009 = 31 Jan 2010} Extension of time granted Phase | without financlal effect 46 Nov 2009 = 25 Mar 2010 -|Extension of, time granted Phase Il vwithout financial effect . Ti | OT Feb 2070-30 Apr 2010 (Phase) [Extension of time granted 26 Mar 3010 —30 Jun 2070 (Phase ily] Wate, 01% minus nancial Wij | OT May 2070 — 18 Jun 2070 (Phase 1) [Extension of time granted 01 dul 3670 — 30 Jul 2070 (Phase Il) win oe {inus financial @ | 16 dun 2070— 30 Sep 2070 (Phase I) [Extension of time granted 37 Tui 2010 31 Oat 2070 (Phase ily_| WM 2% minus nancial effect. (i) [OT Ost 2510-31 Dec 2010 (Phase |) [Extension off time granted CA Noy 2010 = 34 Mar 2077 (Phase wy | MP 2% mrs financial effec 4, And Whereas, scope of the contract was amended from 108 Shelters to 28 Shelters by amendment to contract vide amendment number 01 dated 29 Aug 2013. 5. _And Whereas, the contract was cancelled vide CE (P) Swaslik letter No 80101/Part- IWS9'EB dated 30 Mar 2016 under the provision of clause 54 of general condition of contract (|AFW-2249). 6. _And Whereas, the said contract includes an arbitration agreement vide condition 70 of IAFW 2249 forming part of contract. The contractor vide letter No MK/HB/(C)/130/16-17 dated 14 Mar 2017 approached HQ DGBR for appointment of, arbitrator. 7. And Whereas, Director General Border Roads, by virtue of aforesaid provisions contained in condition 70 of IAFW 2249 appointed, Col Monish Dass, VSM as Sole Arbitrator to adjudicate upon the disputes pertaining to the | subject contract vide 25091/DGBRISWTK/ ARB/O3/E8 dated 10 Dec 2017. ! 8. And Whereas, the Sole Arbitrator entered —_ into 52286P/MD/BMK/O3/ARB dated 16 Feb 2018 calling upon both statement of case with supporting documents by 14 Mar 2018. 9, And Whereas, both parties were also requested to submit their pleadings in defence fo the claims by 14 Apr 2018 and submit replies to the pleadings in defence by 30 Apr 2018. i oe. Feference vide lparties to submit their4 179. And Whereas, M/s MK Infrastructure Pvt Ltd submitted tHeir claims vide MKVHB “(CVARB/04/130/2018-19 dated 27 Apr 2018 and department submitted their claims vide 80101/PL-IV46/E8 dated 10 Apr 2018. 11, And Whereas, pleading in defence by M/s MK Infrastructure Pvt Ltd, to department claims dated 10 Apr 2018 was submitted vide MKI/HB(C)/ARB/05{130/2018 dated 14 May 2018 to which department submitted their rejoinder vide 80101/PLI/SB/E8 dated 24 Jul 2018. 12. And Whereas, pleading in defence to contractors claim culrmited vide letter dated 27 Apr 2018 ‘was submitted by the department vide 80101/PL- WEBIES dated 17 Oct 2018 and rejoinder submitted by contractor vide MKI/HB(C)/ARB/O7(E)/130/2018 dated 22 Nov 2018 and again parawise replies on contractors rejoinder dated 22 Nov 2018 submitted by department vide 80101/Pt-II/01/E8 dated 17 Jan 2019. 43. _ And Whereas, first oral hearing was fixed on 04-05 Feb 2019 at HQ 764 BRTF, Pin - 930764, Clo 99 APO at Kalimpang vide Sole Arbitrator letter dated 17 Jan 2019, 14. And Whereas, the first hearing was held on 04 Feb 2019 at HQ 764 BRTF, Kalimpong and both parties agreed to conduct the oral hearings. ‘The hearing was attended by:- (@) | Department side =] Shri AK Gupla, SE (Giv), Commander 764 BRTF = | Shri UK dha, EE (Civ! OC, 130 ROC (b) | Contractor side =| Shi Kaifash Kandoi, (Mis MK Infrastructure Pvt Ltd) [Shei KC Baul, Legal Counsel 45. And Whereas, the undersigned introduced himself and requested all present to also do the same. Thereafter, objections, if any, to the appointment ofthe undersigned as the Sole Arbitrator were invited. To this, both the parties declined to raige any objections. 16, And Whereas, the department presented their claims and oral arguments were conducted para wise and proceeded til para 3.6.7 of department claims when hearing was adjourned for 05 Feb 2019. Record of hearings on 04 Feb 2019 was promulgated vide 52286P/MD/BMK/ MON/ARB dated 04 Feb 2019. 17. And Whereas, oral hearing continued on 0 Feb 2019 and arguments on department claims were completed. 18. And Whereas, during hearing of contractors claim, the claimant agreed to ealeulation error in Claim-No 1. it was agreed by the both parties that the contractor to submit revised Claim No 7 and revise other claims also affected by the error. Thelhearing was concluded and record of hearings on 05 Feb 2019 wes promulgated vide §2286P/MD/BMK/TUE/ARB dated 05 Feb 2019. ! 19. And Whereas, the revised statement of claim were submitted by the contractor vide MKI/HB(CVARB/RCLIO5/130/2018-19 dated 25 Mar 2019. chet A20, And Whereas, the second hearing was fixed on 22-23 Apr 2019 at HQ 764 BRTF, Clo 99 APO, Kalimpong vide Sole Arbitrator letter No 52286P/MD/BMKISO/ARB dated 22 Mar 2019. 21. And Whereas, the second hearing were attended by:- (@) | Deparment side - ]Shri SK Pradhan, SE|(Civ), Director (Contracts) , : =| Shri PK Singh, EE (Giv), SW =| Shri Lk tha, EE (Civ), OC, 430 RCT (©) | Contractor side = | Shri Kailash Kandoi, | (M/s MK Infrastructure Pvt Ltd) ~ | Shri KC Baul, Legal Counsel 22. And Whereas, the second oral hearings were held on 22 Apr 2019 and contractors, claims submitted vide letter dated 25 Mar 2019 were argued and counter arguments given by the parties. Record of hearings were promulgated vide 52286P/MDIBMK/ MON/ARB dated 22 Apr 2019. : 23, And Whereas, department agreed to submit pleading in defence by 30 May 2019 and cofitractor agreed to submit rejoinder or any additional documents or submission within a period of one month thereafter. 24. And Whereas, pleadings In defence to contractors claims yide 25 Mar 2019 were submitted by department vide 80101/PE-IVARB/27/E8 dated 30 May 2019 and rejoinder thereon submitted by contractor vide MKV/HB(CVYARB/RCLIO7/130/2018-19 dated 26 Jun 2019. 25, And Whereas, [cin terms-of San-10 of Athitraion Act 1286 made clear to both the parties that the Sole Arbitrator has full authority fo rule on {ts own jurisdiction for adjudication of claims, ! 26, And Whereas, opportunity lowed to both, relies for submission in ‘ualing, gubmission of exhib ané-ors-euvidence and poih partes fonfirmed that they had hhothing more fo add or say. ! 27. And Whereas, | have examined all the relevant documents. ‘submitted before me, the pleading/arguments of both parties and oral.evidence produced before me. : 28. _ Now, |, Col Monish Dass, taken the burden of reference and heard, examined and considered the pleadings submitted by parties and have duly considered all the submissions/evidences and arguments and havi is ind_imparti Aaving_applied_my_mind impartially and. judiciously and_having my awar if _natural justice, fair play and good consciousness. 7 a _—_ 29. I hereby make and publish final award in succeeding paragraphs, claim by claim, giving reasons in favor or against each claim,6 Claims of contractor M/s MK Infrastructure (Pvt) Ltd (2) Claim No 4; Sum due to the claimant/contractor ag less advance payment made in successive RARs including extra/additional work executed plus interest thereon of Rs.42,43,252/- wi The claimant has claimed an amouni of Rs| 1 | 1,13,15,339/- (Rs One Crore thirteen lacs fifteen thousand three hundred and thirty nine only) on account of following: i) Apr 2018 and Annex: RCL — statement of claim daied 25 Mar 2019. (ii) ae Amount of work executed . \ Physically at ste (28) Shelters = Re. 1,09,53,685.00 (I) Physically at site (8) Shelters - Rs, 22,36,140.00 (il) Extra protective work etc = RS. 54,33,203.00 Total Work done - R4 1,86,23,088.90 PaidinRAR - R& 73,07,749.00° Balance - Re, 1,13,15,339.90 The claimant has submitted thé details as statement of claims dated 27 ‘The claimant has submitted that:- RCL ~ ‘C’ & RCL — 'D’ in’ his, revised Ih considering weather (22) _ That perio ion was not enor conditions, political turmoil, road blocks due to land slide, and work at different sites. (ab) That manufacture of hollow blocks impossible and getting it from Siliguri at higher cost. (2c) _ Non approvat of extension period timety by respondents, (ad) Delay in response of department on availability of polyurethane PUF foam sheets. {ae) Site at Thegu brigade having unduly st excessive earth and PCC works. {af) That he has carried out works in 36 she| to CA while CA was amended to 28 Shelters. {ag) That tie department did not handover th ep slope thus needing ters before amendment 2 complete site. (ah) That most of the shelters as per CA Have no provision of ceiling work and only electrical work but are clubbed in the billing schedule. (aj) That most shelters as per CA have no provision for plumbing and sanitation but 5% in the billing schedule has been taken, (ak) That there is a provision of NOC from Army unit 20% and site Clearance and photography 10% which is not realistic. -(al) That the claimant contractor vide letter dated 23 Sep 2011 had stated that 3rd RAR had been duly submitted based on revised billing schedule and had prayed for extension of time|but the department had refused for revised biling schedule vide fetter dated 03 Oct 2011. 7 (am) That on 31 Mar 2016 a Caveat was filed by the department against cancellation of contract and simultaneously, to safeguard the wrongful cancellation of the contract, the claimant contractor moved to the Ld Dist Judge Sikkim (Gangtok) for injunction of the cancellation of contract vide case number 01 of 2016 on 08 Apr 2016 and the Ld Court was pleased to grant the order for inanilion of interim injunction upto 26 Apr 2016, that vide letter dated 06 = 2016, the department had asked the claimant contractor to attend the joint measurement on 18 Apr 2016, but due to aforesaid reason the claimant contractor could not attend the meeting in the joint measurement {an) That the department vide letter dated 06 May 2016 receiveti on 11 May 2016 asked the claimant contractor to attend the joint measurement on 16 May 2016. During the period the contractor. was. out of station and travelling for other business works, The contractor requested the department for date to be fixed for 30 May 2016 or any other suitable date for joint measurement. | (a0) That considering the circumstances, the department fixed the date on 30 May 2016 but the letter was received by the claimant contractor on the date of joint measurement! at 1530 ‘hrs, thus the department took the measurement in absence of contractor. (ap) _ That the claimant contractor in a meeting with concerned officer of DGBR on 01 Dec 2015 appraised details of problems at site and was assured the hindrances faced will be taken into account positively and contractor assured to complete the work allthe earliest. (aq) That in a presentation given on 15 Dec|2015 in presence of all officers including DGBR, assurance was given by the claimant contractor that work would be completed by 31 ul 2016. {ar) That the department has asked the |claimant contractor to complete the balance work on ground and submit the bill vide letter dated 04 March 2016. (as) That the clalmant contractor submitted the Sth RAR for Rs.34,28,124/- as per billing schedule vide letter dated 01 Apr 2016, (et) That to the utter shock and surprise ofthe claimant contractor vide letter No 80101/Pt I’ /E8 dated — Mar 2016 received on 12 Apr 2016, the subject contact was cancelled wef 30 March 2016. ~ {au) That the cancellation of contract is illegal in the eyes of law and Contract Act and the principles of fair play and press 31. ‘The department have stated the following vide their submission dated 30 May 2049: (a) That the time period was adequate duly considering jall factors including the weather conditions, road blocks, transport ofmaterial. d cs8 (b) ‘That the contractor had visited the site and familiarized himself with site conditions as per clause 15 of NIT at ser page No 62 of CA. | {c) That as per contract Act Sec 7, the acceptance of the contract is absolute and unqualified (8) That thea the work, Time “contractor? Details of time extensions given are as under: [At [16 May 2009-15 Sep 2000 —~- ‘|| Extension off time granted My Phase | without financial effect 30 Jun 2009-15 Nov 2009 - | Extension of] time granted Phase Il without financial effect [4 [16 Sep 2609 - 31 Jan 2010 =JExtension off time granted Phase | without financial effect 16 Nov 2009 — 25 Mar 2070 =]Extension off time granted] * Phase It without financial effect fi) | 01 Feb 2010-30 Apr 2070 (Phase!) | Extension of| time granted N with 0.1% minus financial ‘26 Mar 2010 — 30 Jun 2070 (Phase II) effect. (y] Ot May 2010 78 Jun 2010 (Phasel) [Extension oft time granted 2 ‘01 Jul 2010 — 30 Jul 2010 (Phase Il) with | 0.1% _ financial [Jef | 16 Jun 2070 30 Sep 2010 (Phase |) | Extension of] time granted _A73t dul 2010 = 37 Cet 2010 (Phase ii) with 2% minus financial effect. [Gy [01 Oct 2070 — 31 Deo 2076 (Phase I) | Extension ofl tine” granted AU Nov 201034 Mar 2074 (Phase tp | Mt" 2% minus nancial effect (e) That the contractors letter regarding change in material was not received nor found in office record and that the contractor failed to produce any sample to OC Contract or Accepting Officer for approval. () That the fact that contractor carried out the work using alternate material and got regular RARs of the work indicates that altemate materiallwas approved. - (g) That, regarding excessive slopey ground at Thegu Brigade, the contfactor was required to visit the alte before quoting rates as per NIT conditions. (h) That, however, due to unduly excessive slope, additional pmt work, a plus deviation order of Rs. 18.48 lacs was made in the contract. (That the contractor vide his letter dated 28 Jun 207 t}had given his {vilingness? as “hereby express my willingness for minus amendment fo CA No SWTK/30/2008- 09 for deletion of remaining structures with rio claim from other side. U shail continue construction of 28 Nos shelters which-are already in Progress. {K) That the Board of Officers was detailed to prepare: inventory of complete items of work and if any material left by the contractor, The' details of the Board of Offcers clearly brings out that work was going on against 28 shelters only. ()__ That the contractor had stated in minutes of meeting held on 20 Dec 2010 that work was. Teller dated 28 Jun 2077 that as32. 9 work against 28 shelters-ara.in progress which proves that department had handed over the site. —— (m) That the billing schedule was mutually agreed and jointly signed by the contractor and the Accepting Officer and intimated to contractor vide letter dated 11 Aug 2009 and that as per clause 24 of special condition jof contract, decision of Accepting Officer in the matter shall be final and binding. {n) That, as per clause 24 of special conditions of contract “The pricing schedule for interim payment will be drawn up and finalized mutually between Accepting Officer after the acceptance of contract’. Hence the bill should be as per billing schedule. However, the contractor vide his letter dated 27 Jun 2015 had claimed the bill based on time and progress chart submitted by him which was not as per CA provisions. (©) That, a Board of Officers was convened vide convening order dated 08 April 2016 to prepare the joint inventory of complete/incompleté works and materials if any, left at site (p)__ That under the provisions of clause 54 of General Condition of contract, the contactor was advised to report to OC Contract on 18 Apr|2016 for preparation of Joint inventory and again vide letter dated 06 April 2016, but the contractor did not turn up even after being given more time vide CE (P) Swabtik letter dated 05 May 2016. (q)__ The board proceedings were completed ex-parte and submitted to Accepting Officer on 21 July 2016 wherein the balance works was proposed to be completed at the Risk and Cost of the contractor, () That, the contractor had been given 24 times the original time period but despite that he failed to complete the works. The claimant contractor has claimed Rs.1,09,53,655.90 against work done physically at site details as per RCL 'B' of submission dated 05 March 2019. 33, cisind tae (@) Contractor has claimed various percentage of completion against all items of Billing Schedule for 28 shelters. - (b) First RAR dated 30 March 2010, an amount of Rs. 7,12,000 was paid to the Contractor as per work done and entered in-Mieasurement Bok, (c) Second RAR dated 19 Nov 2010, an amount of Rs. 19,27,000/- was paid to contractor as per work done and entered in Measurement Book. (@) Third RAR dated 30 March 2015, an amount of Rs. §,33,000/- was paid to the contractor against work done and entered in Measurement Book. (©) Fourth RAR dated 16 Oct 2015, an amount of Rs. 6,32,000/- was paid to the contractor against work done and entered in Measurefnent Book. loom10 () _ Extension of time — Various extensions in time were granted under clause 11 (4) of General Condition of contract (IAFW 2249) as applied by the contractor as. below: @ | 16 May 2009-75 Sep 2009 - | Extension of time granted Phase | without financial effect 30 Jun 2009-75 Nov 2008 - | Extension of time granted Phase Il without financial effect Wi | 16 Sep 2009 — 31 Jan 2010 =|Extension of fime granted Phasel without financial effect 16 Nov 2009 — 25 Mar 2010 =| Extension of time granted Phase Il without financial effect (i) | 01 Feb 2010 ~ 30 Apr 2010 (Phase |) 26 Mar 2010 — 30 Jun 2010 (Phase Il) Extension of time granted with 0.4% minus. financial effect. ' Wy) | 07 May 2010 — 18 Jun 2010 (Phase ly 04 Jul 2010 — 30 Jul 2010 (Phase Il) Extension of time granted with 0.1% fminus financial effect. () | 16 Jun 2070 — 30 Sep 2070 (Phase |) 31 Jul 2010 — 31 Oct 2070 (Phase II) Extension of time granted with 2% minus financial effect. [ (wi) | 07 Oct 2010 — 37 Dec 2070 (Phase I) 01 Noy 2010 - 31 Mar 2071 (Phase Il) Extension of time granted with 2% minus financial effect. (9) Time. period of the.contract was accepted by the contractor as per conditions in NIT and contractor was to familiarize himself, with site conditions to assess the quantum of work. . 7 (h) Against a completion date of 15 May 2009 for Phase | and 29 June 2009 for Phase Il, the contractor was granted extension till 31 Dec 2010 for phase I and 31 Mar 2011 for phase II. GZ Amendment to contract was Sgréed"by Hoth paitiesjand signed on 29 Aug 013, — (K)___ The contract was cancelled vide HQ CE (P) Swastik letter dated 30 March 2016 under provision of Clause 54 of General Conditions of Contract (AFW.2249) [since the Contractor_failed_to_complélé the Work despite_grant_ofextension.of-time ‘multiple times) () The billing schedule had various heads under which the payments were _ released. The contractor has claimed full percentage of these heads under which no physical work was involved. These items in the billing schedule (Non physical work and Not Applicable items) are as follows:- () NOC from Army Units (li) Site clearance & photographs (ii) Plumbing & Sanitations Aes. (Not applicable in some shelters)Fry (iv) Electrification & Ceiling - 10% (Not applicable in some shelters) (m) The contractor was repeatedly called for the purpose of joint measurements however neither he nor any representative reported for the joint measurements on the scheduled dates. {n)_ Finally, the Board of Officers detailed for the purpose! has prepared inventory of items of work with percentage completion and material, jf any, left at site by the contractor. At the time of cancellation of contract, the ‘percentage of work done on various shelters has been assessed by the Board of Officers. (0) The contractor was given adequate time with reduced scope of work but the contractor failed to complete the work. () In my view, the contractor would have been paid full amount as per-rate quoted had the shelters been completed however, since the|contract was cancelled, the money spent by the contractor towards “actual construction work" is due to him i.e. for the “Non physical work” and “Not applicable in some shelters" items in the billing schedule.(para 33(\) above). (@ Although the contract has been cancelled legally by'the Accepting officer in terms of condition 54 of General Conditions of Contraci(IAFA 2249), it would be fair to allow payment in proportion of the work actually done by the contractor. This Is considering the fact that had the items like photography, NOC from Army etc not been there in the billing schedule, their value would have been distributed among the other items of work where physical work is required. ()__ Thus, the contractor is allowed payment for the items in the billing schedule which did not require any physical work, It would be fair to allow amount in proportion to the actual progress achieved in each of the shelters as assessed by the Board of Officers. The details are attached as Appendix ‘A’. Award. “The award against claim No 1(I) is Rs. 17,30,963.00 (Rs| Seventeen Lacs thirty thousand nine hundred and sixty three only) in favour of the contractor, —— 34, Claim _No 4(l1) : Amount of work executed physically, at site (08 shelters)- Rs, 22,36,140.00 fa) _ The contractor has, claimed vide Annex RCL ‘C’ of his submission dated 25 Mar 2019, an amount of Rs 22,36,140/- on account of work executed before revision of CA. (6) The department submitted that as per willingness given by the contractor for jendment to CA vide letter dated 28 Jun 2011 contractor] had clearly stated that works against 28 shelters is in progress, <@ Since the contractor did not turn up for joint measurements, a Board Officers has assessed the work done and balance works.| (As~per the Board of, (Officers. works was.done.in. only 28 Sfeélters.) odes h12 { -. ite | find that no record of measurements is submitted regarding works carted ‘out on 08 shelters as claimed. Further, no conclusive proof has been produced before the Arbitrator to establish the fact of the claim that 08 shelters or part thereof ° were constructed at site, in absence of any other ‘documents, tho board proceedings of Board of Officers that had visited the sites arjd assessed the works is, the document being relied upon and’thé7é-is"no"réason to }doubt the-impartialify of the Board of Officers officially detailed for the purpose: (©) Thus, the claim of the contractor for work executed physically at site (08 shelters is not sustainable and disallowed. ' Award | ‘The award for claim No 1 (li) is NIL. 35. Claim No 1 (Ill) : Extra protective works - Rs. 54,33,293/- | (@) The contractor has claimed Rs. 54,33,293/- on account of extra protective works etc, details at Annex 'RCL”D’ vide his submission dated 25 Mar 2019. SINo | Description Giy_ | Rate | “Amount (Cum) | 1. RRM (1:6) 497.4 4250 | 24,13,950.00 2, | Earth work in| 2745 [23082| , 63,360.00 excavation | PCC (1:4:8) 180.9 5750 | 10,40,175.00 . PCC (1:2:4) 120.9 6800 B.22,120.00 %. | Earth workinfiling | 743.3 | 4875 | 13,93,687.50 Total 54,33,293.00 (b)__ Respondents argument is that the lump sum quoted rate were called for each and every building. ‘The lump sum cost includes all expenditure required to be made including site specific cost. Also that as per NIT conditions, the contractor was required to visit the site and acquaint himself with the conditions prevailing at site before quoting rates. (©) _ That due to unduly excessive slope additional pmt; works, a plus DO for Rs.18.48 lacs was made in the contract vide DO No 07 dated 25 Sep 2010 which has been accepted by the contractor, 1 {d) | find the contention of the department that the contractor was to quote lump sum rate including site specific cost has merit. Moreover, no proof of measurements or documents justifying the additional protective works done [by contractor has been produced. Also, the proceedings of Board of Officers for assessment of work done and balance works has no record of additional works as claitned. Thus the claimant contractor has not proved that additional protective works wefe carried out. (e) Thus, the Deviation order No 7 dated 25 Sep 2010 fajan amount of Rs 18.48 Lacs, which was mutually agreed and duly accounted in the running payments is considered final. j ole ; a36. 2B | Award | ‘The award for claim No 1(Il) of contractor for extra protective works is NIL. yey Claim No J Amount claimed Rs. 42,48,252.46 on account of interest @ 18% PA on Rs.1,13,15,339.90 in work done from date of occurrence 16] Oct 2016 to date of appointment of arbitrator Le., 10 Dec 2017. 37. (a) The claimant contractor has claimed interest on the arnount due to him on the work done less the amount paid in RAR for the period between last RAR paid and date of appointment of arbitrator. (0) The respondents have argued that since no amount bs due to the contractor thus no interest is applicable. (© _ find that the billing schedule was mutually agreed bra signed by both the patties and no objections were raised by the contractor, Interest would be Eppleable only on the amounts denied to the contractor for specific period of time. However, since the work was not completed and contract was cancelled, the contractor claim is justified only upto the extent of work actually done as awarded in claim No.1(). Thus, Interest as claimed in Claim No 2 for Rs. 42,43,262.46/- is disallowed. Award ‘The award against claim No 2 of the contractor is NIL. Claim No.3(i) : Compensation @ Rs. 10,01,501.00 (@ The claimant contractor claims Rs. 10,01,501.00 as wrongful recovery of penalty by the department, although extension of time for the delay:in completion of ‘work Was.granted which is for circumstances beyond the contro! of the contractor as per condition 11 (A) of IAFW 2249. (a) The compensation has been levied on the contractor for an amount of Rs. 10,01,501.00 in the second RAR dated 19 Nov 2010. The respondents have argued that work was abnormally delayed by the Srtcactor, The orginal date of completion was 29 Jun 2003, However, on request of the contractor, time extension upto and including 15 Nov 2009 was granted by the Accepting Officer without imposing any compensation. Despite substantial time extensions, contractor failed to complete the work within the extended time period {¢)___ In my opinion, the extensions of time are governed by-condition 11(A) of the IAFW 2248. The provision of extension of time exists only far reasons beyond the control of the contractor, Thus, extension granted under Clause 17(A) of General Conditions of Contract (IAFW-2249) is deemed to be delays beyond the control. of the contractor. (e) The compensation levied on the contractor for the delays under section 50 of General Conditions of Contract (IAFW-2249) is applicable fin case the contractor aes. -1“ * fails to complete the work and clear the site on or béfore the date fixed for completion”. () Thus, once extension is granted under section 11(A) of General Conditions of Contract (|AFW-2249), compensation cannot be levied on the contractor for that period of time under section 80 of General Conditions of Contract (IAFW-2249). (@) _ Thus, the claim No 3() of the claimant contractor for the amount of Rs 10,01,501.00 is allowed. — Award The award against claim No 3) is Rs. 19,07,501.00 (Ten lacs one thousand five hundred and on ‘one only) in favour of the contractor. 38, Claim _No tiny & Afiv) : Security Deposit Rs.4,99,000.00 and reserve Rs 4,02,887.00 (a) The contractor has claimed the refund of Security Deposit of Rs. 4,90,000.00 and reserve Rs.4,02,887.00 forfeited by the department. (b) The respondents argue that the Security Deposit tha been deducted from contractors bill as per condition 68 of General Condition of contract (IAFW 2249), As per the condition “security deposit may be refunded to the contractor after expiry of defect liability period (vide condition 46) by the OC provided always that the contractor shall first have been paid the final bill and have rendered a No Demand Certificate". (c) I find that the amounts of security deposit and reserve have been deducted legally as per General conditions of contract. Also, the contract has been cancelled legally under condition 54 of General Condition of contract (IAFW 2249) at the risk and cost of the contractor wherein the department can recover the amount from the contractor. The contractor was neither paid final bill nor has any No demand certificate been rendered. (d) Therefore security deposit & reserve amount is withtfotd with the department legally and the claim of the claimant for refund of Security Deposit Rs. 490,000.00 and Reserve Rs 4,02,887.00 is disallowed. Award The award at 39, Claim No Sean (@) The claimant contractor has submitted that the department has wrongly deducted SSD Rs.12,51,875/- from Ist RAR dated 30 Mar 2010. The same was refunded to the contractor after a lapse of 05 years and 6 months, hance claimed on account of blocked capital. st claim No 3(i) and 3tiv) is NIL. I Wrongful deduction of SSD Rs, 12,51,875/- (©) _ The respondents argument is that Special Security Deposit. Rs.12,51,875.00 @ 2.5% on the revised contract amount of Rs.5,00,75,012.00 (DO No.7- dated: 25, Sept 2010) was deducted correctly. Further, contract was amended to Rs.1,82,89,302.00 as per amendment No 1 dated 29 Aug 2043. Accordingly, sum of oles ve8 15 . 4¢ _ Rs.12,36,181.00 was paid to the contractor through hand receipt on account of ; excess deduction of security deposit and special security deposit on 12 Nov 2015. { find that the SSD was correctly deducted @2.5 % of the CA amount of the ‘original contract agreement. The special security deposit was to be refunded to the contractor once’the amendment to contract was done on 29 Aug 2013. However, the amount of Rs.12,36,181.00 due to the contractor was refunded to him only on 12 Nov 2015 i.e. a delay of 2 years, 2 months and 14 days.| Thus, the-contractor is entitled to interest on the amount of Rs.12,36,181.00 fora period of 2 years, 2 months and 14 days due to delay by the department in refund of amount to the claimant contractor. (d)___ Interest on Rs 12,36,181.00 for a period of 02 years|02 months and 14 days @ 11% per annum is considered fair and just which works obit to Rs. 2,99,528,34. rd . The award against claim no_3(ii) is Rs._2,99,528,34 (RS. Two lacs ninety nine thousand five hundred and twenly eight and paise thirty four only) in favour of the contractor. 40. Claim No, e: Interest of 18% PA on Rs, 31,46,263/- from dalle of first RAR to date of appointment of arbitrator as per details below:~ @) Compensation —- Rs. 10,01,501.00 (il) Security Deposit = Rs, 4,90,000.00 Gi) SSD - Rs, 12,51,878.00 (iv) Reserve ~ Rs. 4,02,887.00 (2) The contractor has claimed interest on Rs.31,46,263.00 @ 18% per annum ie on amount claimed in claim No 3. The department has denied the claim and argued that the contract was cancelled at the risk and |cost of the contractor. Contractor neither deposited the risk and cost amount nor submitted/paid the final bill. Therefore, Security Deposit, SSD and Reserve amount held by the department as per contract provisions, hence no interest is applicable on withheld amount. (b) __In my view, among the amounts above, claim for refund of Security deposit and Reserve have been disallowed at claim No 3 (ii}&(iv) above. (c) The SSD amount was refunded to the contractor jon 12 Nov 2015. The interest claimed thereon has already heen awarded to the claimant contractor in the claim No 3(ll) above. (@)___The claim for refund of penalty for the amount of Rs [10,01,501.00 is allowed at claim No 3()) above, and since the deduction of penalty has been ruled to be illegal, interest on the amount is entitled to the claimant, (€) | consider that simple interest of 11 percent per | annum to be just and reasonable on an amount of Rs. 10,01,501.00 from the date of deduction of penalty {ill the date of appointment of Arbitrator, Date of deduction of penalty - 19 Nov 2010(RAR No 2) Date of appointment of Arbitrator - 10 Dec 2017 Rate of interest = 11% PA Period - 07 years 20)days as a16 . Thus, an amount of Rs, 1,10,165.00 per year Le, total Rs 7,77,192.21 as interest is awarded to the claimant contractor. Award ‘The award against claim No 4 is Rs. 7,77,192.21 (Rs. Seven lacs seventy seven thousand one hundred and ninety two and paise twenty one only) in favour of the contractor. 4 : 41, Claim No.5’- Stores lying at site - Rs.’5,83,480.00 | (a) The contractor has claimed an amount of Rs. 5,83,490.00 on account of stores lying at site 2s per details at RCL ‘E' of his submissions dated 26 Mar 2019. {b) The department has argued that on cancellation of contract, a Board of Officers was detailed to prepare inventory of complete items, of work and material, if any, left by the contractor, The Board of Officers recorded that contractor had carried out works against 28 shelters only and there was no materials left by the contractor at site. (©) The contactor was advised to report to OC Contract on 18 Apr 2016 for preparation of joint inventory and again vide letter dated [06 April 2016, but the contractor did not turn up even after being given more tinje vide CE (P) Swastik letter dated 06 May 2016, (4) In my opinion, since no documents or records have been produced by the Glaimant contractor in support of his claim thus the quantity or value of stores as claimed cannot be established, The Board of Officers has been perused and as per the board proceedings also there were no stores found lyinglat site. Thus, the claim of the contractor for Stores lying at site is disallowed. Award The award against claim No 5 is NIL. 42. Claim No. 3 Variation in price of material (this supersedes condition 63 of IAFW 2249) — Rs. 83,68,409.00. (@) The claimant contractor has claimed an amount of Rs. 83,68,409.00 on account of reimbursement’ on variation in prices of material (\his supersedes condition 63 of IAFW 2249) as per details at RCL 'F’ of his submission dated 25 Mar 2019. (b) The department has argued that as per clause |22.6, 23.4 of Special Conditions of contract, all disputes arising out of interpretation of application of the clauses for reimbursement on the variation on prices of material, labor and fuel shall be referred to the Accepting Officer whose decision shall belfinal and binding. Thus, reimbursement on variation of prices of material, fuel and labor is outside the purview of Arbitration. ae L© variation in prices : Material and Fuel (this superseded cond v As per para 23 of Special Condition of contract reimbursement/refund on n 63 of IAFW 2249), The reimbursement on variation of prices of material is governed by the formula; E m= (Vmz— Vim) X (Wa-We) “We ‘Where E m = Variation in price of material to be adjusted. (@) =(KmxVq) +(Vs~Vb) ‘100° K m= Constant representing percentage cost of material, including Schedule B materials, as compared to the total value of work under the contract as a whole. The value of K m for this work is 55. Vg = Gross value of work done at contract rates upto the last date of period of reckoning. Vs = Value of all materials lying at site for incorporation in work including materials issued under Schedule ‘B and including material brought and paid or payable to contractor under Prime cost sum and Star Rate(s). Vb = Value of materials(out of Vg and Vs) issued under Schedule ‘B" plus value of all material brought and paid or payable tol contractor under Prime cost sum and/or Star Rate(s). W1= Wholesale price index of all commodities (Base 1993-94-10) published by the Economic Advisor to Govt of| India as on date of commencement of the period of reckoning. In case the original contract period is extended under condition 11 of IAFW 2249, the price index as applicable on the date of commencement of last period of reckoning before the original -completion date shall only be applicable during the extended period. Wo= As per W1 but the index as per the actual date of opening of tender. Vm2= Value of material upto the last date of the fiod of reckoning for which price variation Is adjustable as worked out as per formula for Vm. m1 = Value of material upto the last date of the period of reckoning for which price variation is adjustable as worked out as per formula for Vm but as on date immediately preceding period of reckoning. | find that, as per the clause 23 of Special Condition! of contract, variation in price of material is applicable and applies to the contract. ‘The contractor has claimed escalation for all work done as per his assessment 6f total work done as per submission in RCL'B. e) above and finally the contract was cancelled on 30 Mar 2016, © Various extensions of time were granted to the contractor as given at para 3 Despite the contract being cancelled by Accepting (Officer, the variation in prices on work done is applicable for the period extension granted under Condition 41 of GOC(IAFW 2249) on the work done amount including items of "Non physical work" items in billing schedule as awarded in Claim No. 1(1) | aes |43. 2249) = Rs, 36,48,023.19. 18 (g) The reimbursement on variation on price of material is as under:- Ist RAR (30 Mar 2010) Vm = (Km xV 9) + (Vs— Vb) = 55 x (20,56,663 x 1.35) + 0, = 18,27,072.27 700 700 (Vg includes work done against “non physical” items in biting schedule @ 35%) Wy, Wo— AIWPI (All commodities) Base 1993 - $4 = 100 Em = 15,27,072x (235 128, = 15,27,072 x .029|= Rs 45,504.33 2% RAR (19 Nov 2010} Vm = 56 x (37,42,488 x 1.35) +0 . 100 Em = 27,78,797.34 x .029 = Rs.80,585.12 Total = Rs. 45,504.33+Rs. 80,585.12= Rs, 1,26,089.45 The award against claim No 6 is Rs.1,26,089.45 (Rupe thousand eighty nine and paise forty five only) in favour o! Claim NO’ - Variation in price of Labour (this supersedes condition 63 of IAFW % One Lakh twenty six” (a) The claimant contractor has claimed an amount of Rs. 36,48,023.19 on account of reimbursement on variation in prices of Labour (this supersedes condition 63 of (AFW 2249) as per details at RCL "G' of his submission dated 25 Mar 2019. (b) The department has argued that as per clause |22.6, 23.4 of Special Conditions of contract, all disputes arising out of interpretation of application of the clauses for reimbursement on the variation on prices of material, labor and fuel shall bbe referred to the Accepting Officer whose decision shall be'final and binding. Thus, reimbursement on variation of prices of material, fuel and labor Is outside the purview of Arbitration. ! (©) | find that, Re-imbursement on variation in price — wages of labour (this supersedes condition 63 of IAFW 2249) is applicable to the contract vide Para 22 of Special Condition. i (é) Despite the contract being cancelled by Accepting biticer, ‘the variation in prices of labour on work done is applicable for the period extension granted under Condition 14 of GCC(IAFW 2249) on the work done amount{including items of "Non physical work” items in billing schedule as awarded in Claim No. 1(I). (e) Further, clause 2.4 states that " no adjustments in prices shall be made for any work done after the stipulated date of completion given in the first work order or chs, | i"19 | extensions of time granted under condition 11 of {AFW-2249(whichever Is later) for the work under this contract.” | @ “The reimbursement on vatiation on price of labour is 4s under:- As per the CA (Increase or decrease in the prices consequent on variation in wages of labour shail be adjusted on the basis stipulated hereunder irrespective of the actual variation in price wages of labour to the contractor. (i) The labour component for the contract as a wijole shall be taken as KL of the value of the work executed under the contract. Variation in labour wages shall be worked out by adopting the following formula:- EL= Kiar x Lilo 400 Ly . Where EL- Variation in wages of labour reimbursement to be made to the contractor or refund to be made by the contractor, KL= Constant representing percentage cost of labour element as compared fo the total value of work under the contract as a whole. The value of KL for the work shall be 25. Vg = Gross value of work done at contract rates during the period of reckoning less value of work paid or payable to the contractor based on actual cost (eg star rate(s), work executed under prime cost sum etc) during the period of reckoning. ' L1= _ Minimum wages in Rupees of an unskilled adult male mazdoor as fixed under minimum wages act, as on the date of commencement of the period of reckoning. 1 LO= As for L1 but the minimum wages as fixed unter minimum wages act in Rupees of an unskilled adult male mazdoor 2s on dotual date of opening of price bid of tender. ' Ist RAR (30 Mar 2010) | Period of reckoning ~ (13 Mar 2009 — 30 Mar 2010) Vg = 20,56,663 x 1.35 = 27,76,495.05 (Vg includes work done against “non physical” items in billing schedule @ 35%) EL = 25% 27,76,495.05 X 100 — 100_ 400 100. 3,72,676, 10. lind RAR (19 Nov 2010) Period of reckoning - (31 Mar 2010 — 19 Nov 2010) , WD =57,99,151 — 20,56,663 = 37,42,488 37,42,488 X 1.35 0,52,388.8 EL "25K 50.52.3588 X 150-100 Lt = 430 100 Lo= 00 = 12,63,089,7 X 0.3 = 378,926.91 Total = 0 + 3,78,926.91 =-Rs. 3,78,926.91 Award . Award against claim No 7 is Rs 3,78,926.91 (Rs Three lakhs seventy eight thousand nine hundred twenty six and paise ninety one lonly) in favour of the contractor, sh) Claim No $ - Variation in price of Fuel (this supersedes condition 63 of IAFW 2249) {a} The claimant contractor has. claimed an amount of Rs. 3,72,676.10 on account of reimbursement on variation in prices of Fuel (this supersedes-condition 63 of IAFW 2249) as per details at RCL ‘H’ of his submission|dated 25 Mar 2019. {b) The department has argued that as per clause |22.6, 23.4 of Special Conditions of contract, all disputes arising out of interpretation of application of the clauses for reimbursement on the variation on prices of material, labor and fuel shall be referred to the Accepting Officer whose decision shall be final and binding. Thus, reimbursement on variation of prices of material, fuel and labor is outside the purview of Arbitration, (©) _ [find that, Reimbursement on variation in prices of fuel are applicable as per para 23 of Special Conditions of the contract agreement. | (4) Despite the contract being cancelled under condition $4 of GCC (IAFW 2249) by the Accepting Officer, variation in prices of fuel is applicable for the period of extension granted under clause 11A of GCC (IAFW 2249) on the work done amount including items of “Non physical work” items in billing schedule as awarded in Claim No. 1(1). (e)__ As per CA, Fuel component of the contract as a whole shall be taken as Kp% of the value of work executed under the contract, Value of Kp| given herein below:- = (Kp x Vos) X (Fs = Fo) 100 Fo Where Ep = Variation of the price of fuel to be adjusted ales aa Na Kp = Constant representing percentage cost of fuel as compared to the total value of work under the contract as a whole. The value of Kp for the work shall be 05, Voi = Gross value of work done during the period of reckoning, using value of Vg for calculating Vit and Vm2 as for catculation of Em. F,= Wholesale price index for sub group for jfuel, power, light and fubricants(base 1993-94=100) published by the Economic Advisor to Govt of India as on date of commencement of the period'of reckoning, Fo= As for F1 but the index as on actual date of opening of tender. () Thus variation in price of fuel is as below:~ Ist RAR (30 Mar 2010) Ep = {Ky X Vas) X (Fy — Fo) : 100 Fo F, = (01 Apr 2009) Fo = (13 Mar 2009) 23.4 (series 93-94=100)! 24 = 05 X 27,76,495 X 323.4324 100 321 = 1,38,824.75 X 0.0074 = 1027.30 lind RAR (49 Nov 2010) Ep = (Kp x Vet) X {Fi Fo), F, = (31 Marj2010) 100 Fo Fy = (13 Marj2009) = 05 X 50,52,358.8 X 361.8 ~ 324 100 321 = 2,52,617.94 X 0.127 = 32,082.47 Total = 1027.30 +.32,082.47 wa ‘The award against claim No 8 is Rs 33,109.77 (Rupees thirty three thousand one hundred nine and piase aad seven only) in favour of the contractor. 45. Claim No 9 7 Claimant contractor has claimed an amount of Rs.2,46,10,846.28 for Gamageflosses for the prolongated period due to delay in conjpletion/ termination of contract by the department/respondents illegally vide para 5 page 9 pf submission dated 25 Mar 2019. Contractor has quoted formula as stated by Hudson in the book of Building and Engineering contact. | Losses= — OH/Profit percentage X Contract Sum x Period of delay in work 100 CP in weeks ae d46, 47. 2 (a) __ The respondents have argued that the department had handed over the site as per requirement and the time extension given to the Contractor as and when requested. However, the work was abnormally delayed bY the contractor despite substantial time extensions. Hence department had no dption but fo cancel the contract as per condition 54 of GCC (IAFW 2249), thus the contactor is fully responsible for delay. (©) [find that the time delay in carrying out of works despite being given adequate time for completion of work as per contract agre nent is due to default on part of the contractor. Since, the delay is attributed to jthe contractor and the respondents have cancelled the contract legally under condition 54 of General Conditions of contract (AFW 2249), the claim of the contractor is not sustainable. Award ‘The award against claim No 9 of the claimant contractor is Nil. Claim No- 40” Establishment cost - Rs.4,65,577.22 (@) The claimant contractor has claimed the estabishment cost of Rs.4,65,577,22 stating that the profit is the only remuneraticn that the claimant gets for execution of works. That profit is the cost of being lin business today and remaining In business tomorrow. Margin of profit depend upon many factors that in minimum 2.5% would be expense on supervisory establishment, field offices, share of overhead charges, travelling expenses, insurance of damiaged plant and injury to labour. ()__ The respondents have denled the claim and stated that no monies are due to the claimant contractor since the contract hes been cancelled under concition 54 of GCC (IAFW 2249). (©) _ In my opinion, the claimant contractor has not completed the work timely as per contract agreement and extensions of time granted by the Accepting Officer. AS such, the respondents are not responsible for establishment, if any, maintained by the contractor beyond the dates of extension granted. The money due to the contractor as per work done were duly paid as per contract agreement, Thus, claim -for establishment cost for an amount of Rs. 4,65,577.22 is not sustainable. Award, The award oar claim No 10 of the contractor is NIL, Claim No 44'- Interest @ 18% PA on claim No 1 and clgim No 3 an amount of Rs.4,33,848.09 from the date of appointment of Arbitrator i.e. 10 Dec 2017 to the date of Reference of Arbitrator i.e 16 Feb 2018. {a) The claimant contractor has claimed on payments dug to him in claims Nos 1 and 8 for the period:- (Date of appointment of Arbitrator to the date oflentering into reference by the arbitrator. (i) Date of reference of Arbitrator to date of publication of award. (li)_Date of publication of award till the realization of payment whichever Is earlier. ee Q48. 2B (b) The respondents have argued that contractor has dommitted breach of the terms of contract and hence, there is no question of interest (©)__ In my opinion, the contractor has not completed the works in the original period of completion or the extended period of completion anid thus the contract was cancelled under condition 64 of General Conditions of Contract (IAFW-2249).. (@) | find that the billing schedule was mutually agreed and signed by both the parties and no objections were raised by the contractor. Interest would be applicable only on the amounts denied to the contractot for & specific period of time. However, since the work was not completed and contract was cancelled, the contractor claim is justified only upto the extent of work actually done as awarded in claim No. (I). Thus, no interest is allowed on the award against claim No.1(I). (€) However, the claimant is due for interest for the amounts which were due to him and withheld by the respondents. Thus, the claimant contractor is dué for interest for the period of date of appointment of Arbitrator to the date of entering into reference by the arbitrator for amount awarded in claim No x (f) Simple interest at 11% PA is considered to be just jand reasonable for the petiod of 10 Dec 2017 to 16 Feb 2078 i.e. 68 days on the following amount:-, Claim No2 = Rs.10,01,501.00 Interest -11% PA | Period - 68 days Award ~ Rs. 20,523.91 (g) interest from date of reference of Arbitrator to date of publication of award is not justified since delays and duration of arbitration proceedings is not attributable to the department. (h) Interest from date of publication of award till the redlization of payment is justified afier a reasonable time is given to the party to pay the amount awarded and ‘a period of 90 days is considered fair and reasonable. Thereafter interest of 14% PA would be applicable till the date of realization of payment. award | (The award against claim No 11 of the contractor is RS.20,523.91 (Rs Twenty thousand five hundred twenty three and paise ninety onel only) in favour of the contractor. (i) Interest from date of reference of Arbitrator to date of publication of award is NIL {il The department to pay interest of 14% per annum| on the total amount awarded from 90 days from the date of publication of award till the actual date of payment. Claim No 12” Cost of reference/arbitration proceedings - Rs'5, 50,000.00 (2) The claimant contractor has argued that claimant has jo intention of going for Atbitration and made sincere efforts to resolve disputes but|respondents remained adamant and did not consider any of claimants claims impartially. Since, it is the respondents who forced the claimant to invoke arbitration, the respondents should bear the cost to cover various legal, technical, postal and stationary ‘expenses etc. —— a24 (b) _ The respondents have denied the claim stating tha the claimant has made his calm on false premises having no authenticated details of work against which claimant has made the claim. (c) | find that the contractor has invoked the arlton alleging illegal cancellation of contract. ‘The contract has been cancelled by the respondent under condition 54 of General Conditions of contract (IAFW 2248) after giving adequate extensions to the contractor to complete the work. (@)__ In my opinion, the contract has been cancelled legally due to default on part of the contractor thus no compensation is due for cost af Arbitration. Thus the claim No 12 for an amount of Rs.5,50,000.00 on account of cost of arbitration is denied. Award ‘The award against claim No 12 is NIL. Respondents Claims . 49, The respondents have submitted their statement of claims vide submission dated 10 Apr 2018. Other than the factual matters regarding contract details and various dates, the respondents have brought out the following:- (@) Thal the details of payment made tothe contractor aré as given below:- The details _ of | Payment details i payment made to | (a) Gost of werk done including extfa 73,07,749.00 t t the contractor | work done Rs.1848522.00. against —_ work [(b) Amount paid through RARs: [ done @ IRAR 712,000.00 (RAR 19,27,000,00 (ii) RAR §,33,000.00 (iv) IVRAR T_ |" 632,000.00 Total (b} | 38,04,000.00 (©) Amount deducted and retained for | following:- I ()__ Retention money i_|-4,02,887.00 (i) Cost of Schedule ‘B stores! = (iii) Recovery against royalty i ~ charges (v)_Compensation for delay a 10,07,500.00 () Ecology cass @ 0.5% ove, 28,996.00 Rs.7,99,151.00 | : (Wi) Ecology cess @ 1% over 15,086.00 Rs. 15,08 598.00 (vii) IT @ 2% incl surcharge and | _1,51,626.00 Edn Cass (wil) Vat @ 2% [| 746,756.00 (ix)_ Security Deposit I 4,90,000.00 (x) Special Security Deposit_|_| 72/51,875.00 (xi)_Labour Cess r 15,086,00 (xi) Balance yet to be paid to | 537.00 contractor Total (¢) | | 35,03,749.00 Total (by & (e) "1 73,07,749.00 im | |50. has brought out the follow 25 (b) That the progress was very slow, cumulative progress achieved by the contractor during the period 01 Apr 2009 fo 31 Mar 2011 was 39.96%, (©) That to accelerate the progress of work, several diligence notices were issued to the contractor but no improvement achieved on ground, (@) That the contractor was given sufficient opportunity by granting time extension of more than one year but the contractor failed to discharge his obligations under the contract. (e) That final notice was served to the contractor ‘on 24 Oct 2015. Thereafter also there was no resumption of work and finally the contract was cancelled on 30 Mar 2016. works and materials, if any, lying at site was convened and|contractor was asked to report on 18 Apr 2016 but the contractor or his representative did not report, .The board proceedings duly completed ex-parte were approved by CE (P) Swastik on 21 Jul 2016 wherein the balance work has been proposed |to be completed on the Tisk and cost of the defaulting contractor. () That a convening order to prepare joint inventory lot complete/incomplete (g)__The defaulting contractor has not deposited the risk and cost amount and approached HQ DGBR for appointment of Arbitrator on 14 Mar 2017. In addition to submission made by the contractor as earlier recorded, the contractor (2) _ That all conditions stipulated in |AFW-2249 are finally|govemed by conditions 51 of IAFW 2249, which states "Laws Governing the Coftract - The subject contract shall be governed by the Indian Law for the time being in force” thus subject to Indian Contract Act 1872. Any deviation or departure, even if agreed to or signed by one or both parties entering in Agreement is ultravires and untenable. (b) That timely payment against work done based on billing schedule, as made by the respondent is unrealistic and technically not authentic! The bill thus prepared ‘seems to be less (-) 35% payment and also inciuding restricted payment and also illegal recoveries hindered the progress of work. (©) __ That prolongation of work for completion in time provided in the Condition 114 of IAFW 2249 is beyond contro! of contractor/force majeure, (d)__ That when a contract has been broken, the party that suffers by such breach is entitled to receive compensation from the party, that has broken the contract. (@)__ That the respondents have given the commencement|date and handing over of site in the same date the work order is placed and that the place is is hilly and locations of site at various locations. A substantial time of minimum 60 days is required for arrangement for smooth running of work. ()__ That the preparation of tender and its execution thereof is improper and nothing but bad administration of contract. (g) That the work was abnormally delayed due to various default of respondents. (nh) That the respondents were required under the instant contract to perform promises like timely handing over of site in various spots in reliance with line plan ae ie7 51. | 2% | free of hindrances, supply of proper drawings, prompt decisions etc and that the respondents failed to fulfill any of the aforesaid promises. (That the specification is constrained in the contract agreement as follows:- () Billing schedule showing breakdown for interim payment per block envisaged at page 105 of CA, thus less payment in sicvecelve RAR. (i) Arminimuum period of time has been given to camplete work in entirety. (iv) Non availability of site for execution of work. | (v) _ Excess deduction of Special Security Deposit. | (¥) Wrongful deduction of Penalty for delay. (vi) Non grant of fime extension as required. (vii) Irregular payments. (vil) Weather conditions. (viii) Political turmoil off and on. {k) That all sincere efforts were made-to complete the ‘work but slowed down due fo continuous worst weather conditions and other hindrance: beyond the control. () That the said contract pertains to 108 shelters at variqus locations, but during progress of work was restricted to 28 shelters but claimant was already working on 36 shelters ie work on excessive 10 Nos shelters was Carried out, further the claimant had completed foundation work of shelter 8x7.5 M at MS-17 but on 20 Dec 2015, the work done earlier were missing and could not be lobated on ground, (m) That payment as recorded was irregular, less and delayed and also wrongful illegal recovery against delay. (n) That totat executed work physically at site was Rs.2,03,76,469.00 and that cancellation of contract is motivated and illegal and ot of risk and cost does not arise. (0) That the diligence notices, final notice and cancellatich of contract Is nothing but to suppress the loop holes in performing the contract agreement. (p} That all the claims put forth by the, respondents cannot be lawfully contractually sustained and is prayed to reject/dismiss claims of respondents in toto. Claim No.1 : Estimated Risk and Cost amount of balance Work executed through Risk and Cost contract Rs.77,59,353.00. (2) The respondents have claimed an amount of Rs.77,59,259.00 on account of Risk and Cost contract to complete the balance work. | (b) That the details of estimated risk and cost amount for Balance work executed through risk and cost contract are as given below:- ae52, 53. ind that:- oe | a | {(@) | Cost of balance work executéd at the risk and cost{of [- | 196,50,024.00 the defaulting Contractor (B) [Contract Agreement amount i 182,89,302,00 (c) | Net amount paid to the contractor upto 4" RAR__! '38,04,000.00 (d) [Cost of work done by contractor and entered in MBI 73,07, 749.00 F(e) | Cost of balance work as per MB Rs.(182,89,302.00 | - | 7.09,81,53.00 = 73,07,749.00) 1 (]_| Cost of balance work as assessed by BOOS | (i) Cost of balance work as per MB (As per (6) | - |"7,09,81,653.00 above). 1 (Cost of work entered in MB but to be | 633,077.00 executed agaln due to damages Total L | | 4,16,14,630.00 @ | Risk'and Cost amount (Cost of risk & cost CA —| '86,68,477.00 cost of balance work as per MB ie a-e) : {Hy_| Deduction of amount held with department T (Retention Money i 402,887.00 (i) Security deposit T '3,23,000.00. (i) Special Security Deposit i 1,82,694,00 (jv) Balance amount in RAR IV ! 537.00 Total held (tolv) | 9,09,118.00 ()_['Net amount to be recovered from contractor (g-h) 77,59,353.00 The contractor has argued:- (@)___ That the contention of the department is not agreed apd not applicable to the Subject contract. The department now feigns fo be the clalmant and have submaities irrelevant statements/dues and claims. (b) That various annexure have been submitted in a wily nly manner whichis not in accordance with the purview of the contract. (c)__ That the claims put forth by the department cannot be lawfully sustained and that the Learned Arbitrator is prayed to dismiss/reject all so called fabricated claims of respondents in toto, {a) The contract agreement including the period of completion was agreed upon by both parties as per the contract agreement. (b) The contractor could not complete the work on time due to various reasons for which extension of time upto 31 Dec 2010 (Ph I) and 34] Mar 2071 (Ph Il) was granted by the accepting officer. {c) The contract agreement was amended vide amendment No 1 dt 29 Aug 2013 and scope of work reduced {o 28 shelters. The amendment was agreed and signed by both parties. (6) Various diligence notices were served on the contractor by the department but the contractor failed to complete the work. cles, oea 28 (e) Final notice was served to the contractor on 25 Oct! cancelled on 30 Mar 2016. 2015 and contract was <@/? Thus contractor has been given adeavot tne oven wih geal reduced sone but did not complete the work. @ yrne“a jent has legally_cancelled thé contract las per condition 54 of eneral Condition of Cori Fact (IAFW 2249)-due-to-rion perfor mance of contractor. fj, The department have legally concluded another contract CA No CE(P) ‘SWTK/26/2016-17 against Risk and Cost of CA No CE(P) SWTK/30/2008.09 for Rs,1,96,50,024.00 as per condition 54 of GCC(IAFW-2249) to complete the incomplete work. () The contractor failed to deposit the risk and cost ariount in favour of CE(P) Swastik c/o 99 APO when approached by the department vide letters as beiow:~ () HQ CE(P) Swastik letter No 80101/PHI/130/E8 dated 09 Feb 2017 (i) ~~ HQCE(P) Swastik letter No 80101/PI/133/E8 dated 31 Mar 2017 (ii) HQ CE(P) Swastik letter No 80101/PIIN136/E8 ci dated 21 Jul 2017 (k)__ Thus, claim No 1 of the department for an amount of Rs.77,59,353/- is (allewed) —— Award as| Pen sps'ez HSE %S = uoneuues w Burquinig| 169'r8 88 mit _|ovvszezy | amionng|_g'zxs|__ 91] 02 - oon y6oy| ‘%OL~ sudeiboiouyd 9 eoueveeTe exs| pew serch 5656 gs +f vonewes Suauinal ofe'ee 6 %80__|ovesueey | among) g'uxa]_¢9i|_ > oe oN %O - Sydesbojoud 9 eourse9p9 21/5} eer‘eh SE %G ~ 1 _uoneyues »g Suiquinia| oge'se zB. 80 | ov'osz’sy Bunn _| guxs|zrsw| "OC ON %OL- SyderBojoyd y sovEIeSP 371s) 08°62 SE 65 ~ uonenues 2 Susquinig| opp'se 88 wer loose, | Suan iguxze|arsw|_z woe- 90N {OL sudetBoqoud 9 souew9p 5 esz'oeh se %G-_| soneiues e Suiqunia|egs'oer | _ es soev _|ovgse’seo's | HGH | oxoz|u sw) f ub on 6 8 Z 9 3 ¢ e| 2 |e (%) 6109 JO OONISUdauBoIOYd feduesee|9 BYSTYN] (Sx)1509 | (%4) | PavaiduoD |(sx)WO 0 PW] jw) {8ag) yunoUry | 9% (EOL 4 (96) 493 a Jo swayi] euop 410M | eoURIEG | BBeadIag | 49d SB ISON. asn__| ezig | 207 Jong. {60-B00Z/08/1.LMS (d)30 ON YO JO poee uoneniquy Jo gg ered Jy) expwodayFeu 33 kb Tz 2 a 5 6 7 z sy 10 it 70 tes [54 [Structure |, 186.88000) 10% [90% 718,685 Plumbing & Sanitation" - 8% 35% 6.540 Med site clearance & photographs - 10% Rest INoc y +20% Ti Ga [xB |Storage | 772,080.00|~ 14% | 85% BOn6T [NA °—o% We TO Med IPhotographs = 10% Regt Noc | 720% TE Tiss HARE [Sructure | 057.460.00/—20% | ~“80% | 191,495 /NA { 7% 35% ora Med Photographs -10% Regt INoc ~ 20% 7 fies oes [civing 479,750.00) 43% B7% | 206,288 |NA —B% 25% 72202 [Photographs 10% INoc = 20% “alias We Storage | 826,100.00) 46% | Sa% | 396,506 |NA aa 3% | 138,788 Mite Photographs , 7 10% INoc = 20% H 75 [TSE [0x8 [Storage | "826,160.00 (46% Sav | 386,566 NA \_ 3% | a0, 78e tle Photographs = 10% INoc = 20% TE HES [2S [Storage | 826,70000| 48% [82% | 386,566 NA ~ 8% 36% | 138,798 hae [Photographs = 10% INoc = 20% TT [fas [ers |Living a7e7s000| 48% | 52% | 230260/NA 7 8% 3% BOSSE Mile Photographs ~ 10% Noc. + 20% Te [iss _|ax5 [ving a7eso00 | a7% | 7a% | 128,595 |NA = 5% 35% W588 Mite Photograchs = 10% Noc = 20% 7S [as [eet [Structure 30% | 186,795 |Photographs + 10% 30% $6,056 Mile oc 20%Q vy - 4 4 ee a & @ 7 aT i 10 7 . : 20 |i95 2x5 [Storage |, 826,160.00) 46% Bi 380,043 [NA Y-m|a5% | T33,015 Mite ]Photographs 4 210% 3 Noc i =20% 1 . Bi [TSB [208 [Storage | 876,160.00 | 30% 61% | 320,210 |NA = 8% [36% [112,774 “ Mile Photographs: = 10% INoc = 20% 22 |195 [2x6 [Storage | 626,18000| 60% | 0% | 419.080|NA Tee | aa | 144.582 Mite Photographs 1 =10% b INoc = 20% 2S [19.5 [20x65 Storage 826,180.00 [45% 3% | _S71,761 [NA = 8% 35% 130,123 Mite Photographs = 10% INoc | - 20% i Ra [95 |raxrs|Storage | 772,080.00 | 17% eam | 127,048 JNA Ta | 35% 37 Mite IPhotographs {71% INoc + 20% 25 [185 _|ex75 [owing “479,780.00 | 22% 78% | 105545 NA - S| ae 6,04 Mite [Photographs ~10% INO = 20% 26 [4025 |Tax7-5|uving 712,060.00 | 70% 30% 77.205 INA ~ | 3% Tia [Thegu [Photographs 10% Noc 320% 2 (4025. (72x75 |Living 712,080.00 | 70% 30% 71,208 [NA ~ 8% | a% 24S . 4 |Thegu Photographs = 10% + . | . INoc ~20% “ 78 |A028 BE, [Structure 3,300.00 | 0% 700% TF O% = . Mead)" wd = le % = Total __ 4 316,392 ola 7.730.585 oe co 4