MANU/SC/0447/2020

True Court CopyTM English

IN THE SUPREME COURT OF INDIA

Special Leave Petition (C) Nos. 3584-85 of 2020 (Arising out of SLP (C) D No. 577 of 2020), Special Leave Petition (C) Nos. 3438-3439 of 2020 (Arising out of SLP (C) D No. 593 of 2020) and Special Leave Petition (C) Nos. 3434-3435 of 2020 (Arising out of SLP (C) D No. 595 of 2020)

Decided On: 22.05.2020

Appellants: Patel Engineering Ltd.
Vs.
Respondent: North Eastern Electric Power Corporation Ltd.

Hon'ble Judges/Coram:
R. Banumathi, Indu Malhotra and Aniruddha Bose

ORDER

1. These special leave petitions arise out of the impugned order dated 10.10.2019 passed by the High Court of Meghalaya at Shillong in and by which the High Court declined to entertain the review petitions filed by the Petitioner seeking review of the judgment and order dated 26.02.2019 in Arbitration Appeal Nos. 3, 4 and 5 of 2018 on the ground that no ground for review is made out and that there is a delay in filing the application for review.

2. We have heard Mr. Harish Salve and Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of the Petitioner. On behalf of the Respondent, we have heard Mr. Tushar Mehta, learned Solicitor General and Mr. Huzeffa Ahmadi, learned Senior Counsel at some length, even at the time of the admission.

3. The learned sole arbitrator has passed the arbitral award dated 29.03.2016 in respect of Package-I holding as follows:

Based on my findings above, I have no hesitation in coming to the considered finding that the contract itself provides rate(s) for payment of extra lead in item Nos. 2.7 and 3.4 of the BOO for surface and underground structures respectively. Admittedly material had been transported from a lead much longer than that envisaged at the time of award of work in favour of the claimant. It is also an admitted case of the parties that the claimant is entitled to extra payment for the extra lead. The only point at issue is whether Clause 33(ii)(a) or Clause 33(iii) would be applicable for working out the rate payable for transportation. In view of my findings, I have no hesitation in holding that the payment of extra lead is to be determined in accordance with Clause 33(ii)(a) for the item which has deviated being already available in the contract.

I, therefore, answer the reference as follows:

The rate for extra lead for transportation of sand and boulders from Government approved quarries to the work site for package-I works under KaHEP shall be decided in terms of Clause 33(ii)(a) of Part-III, Volume-I, Conditions of Contract of Book-II of Contract Agreement No. NEEPCO/ED/QP/C&P/R/C/KaHEP/560 of 2004-05 dated 17.12.2004.

Similar Declaratory Arbitral Awards dated 29.03.2016 were passed by the learned sole arbitrator in respect of the other two Arbitral References in respect of contracts pertaining to Package-II and Package-III of the project.

4. Respondent-North Eastern Electric Power Corporation Ltd. (NEEPCO) filed three applications Under Section 34 of the Arbitration and Conciliation Act, 1996 before the Additional Deputy Commissioner (Judicial), Shillong challenging the three arbitral awards dated 29.03.2016 in respect of Packages-I, II and III. The Additional Deputy Commissioner (Judicial) vide common judgment dated 27.04.2018 rejected the applications Under Section