A W A R D

IN THE MATTER OF:

Arbitration & Conciliation Act,
1996;
A N D
IN THE MATTER OF:
Arbitration Clause 56 contained in
the General Conditions of Contract
read with Clause 20 of the Special
Conditions of Contract;
A N D
IN THE MATTER OF:
Order dated 9th December, 2005
passed by the Hon’ble High Court
at Calcutta in F.M.A. No.809 of
1989;
A N D
IN THE MATTER OF:
Arbitration
Between
M/s. Tribildal Pvt. Ltd., formerly
of 157, Jodhpur Park, Kolkata –
700 068 and now having its
registered office at 4A.
Kanaichand Sanyal Lane, Kolkata –
700 004.
……… Claimant
And
M/s. National Projects
Construction Corporation Limited,
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having its registered office at

Plot No.67-68, Sector – 25,
Faridabad – 121004 (Haryana) and
having offices and carrying on
business inter alia at Farakka
STPP II Units, P.O. Nabagram,
Dist. Murshidabad and at the Zonal
Office at 3A, Dr. Satya Nanda Roy
Road, Behind Menoka Cinema,
Kolkata – 700 029.
……… Respondent

WHEREAS, in pursuance of the order dated 9th December,

2005 passed by the Hon’ble High Court at Calcutta in

F.M.A. No. 809 of 1989, the then Chairman & Managing

Director of the Respondent by an order dated 3rd

January, 2006 has appointed me, Shri N.K.S.Gahlowt,

the then Deputy General Manager (C.M.& W) of the

respondent as the sole Arbitrator to adjudicate the

disputes and differences which arose in between the

claimant and the respondent herein in execution of the

work under the said contract agreement.

AND WHEREAS, in pursuance of the said order of

appointment, I as the sole Arbitrator have entered

upon the reference on 6th January, 2006 to adjudicate

the said disputes and differences between the parties.

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AND WHEREAS, the parties have submitted their

respective Claims, Counter Claims, Rejoinder,

Surrejoinder etc. and records and documents in support

of their respective cases.

AND WHEREAS, I have held several sittings in the

arbitration proceedings in between the parties.

AND WHEREAS, both the parties have been given full and

equal opportunities to either settle their disputes

amicably or/and make and submit their respective cases

during the arbitration proceedings. Both the parties

have fully cooperated with me in all respects during

the proceedings despite the facts that they could not

settle the dispute between themselves. After both the

parties have completed their submissions, I concluded

the hearing of the said arbitration proceedings on 5th

March, 2010.

Now, during the hearing of the arbitration proceedings

the following relevant facts have been transpired from

the various records, documents, arguments and

submissions made and submitted by both the parties:

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1. The claimant was awarded the work for construction

of Civil Work of CWS Part-1 at Farakka Intake

Pump House and Forebay Structure by the

respondent vide letter dated 11th October, 1982.

2. The agreement as executed by and between the parties

at the said Zonal office of the respondent which

provided that the said agreement as well as the

matters in respect of execution of the said work

would be governed by the General Conditions of

Contract and Special Conditions of Contract

issued by the respondent. Clause 56 contained in

the said General Conditions of Contract as well

as Clause 20 of the Special Conditions of

Contract have provided an arbitration clause for

settlement of all disputes and differences which

were to be adjudicated by way of arbitration that

would have arisen between the claimant and the

respondent.

3. By letter dated 26th April, 1984 the respondent

terminated and cancelled the said agreement

during the execution of the work. The respondent

also giving notice to the claimant took ex parte

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measurement of the works so far executed and

completed by the claimant.

4. On 9th May, 1984 the claimant filed a Special Suit

under Section 20 of the Arbitration Act, 1940

(now repealed) in the Learned 3rd Court at

Alipore, Calcutta against the respondent.

5. On 4th April, 1985 the respondent filed written

statement in the said suit filed by the claimant.

The relevant paragraphs are 25, 31, 32 and 33

wherein the respondent has dealt with the

relevant paragraphs of the plaint relating to the

claim of the claimant. Though the said written

statement was verified on that day but there is

no mention of any Measurement Book and Final Bill

dated 4th May, 1989 as relied on by the respondent

in this proceeding. There is no counterclaim or

any claim on account of any recoveries as claimed

later on.

6. The said suit was ultimately disposed of inter alia

on the ground that the claimant should have

approached the respondent for appointment of

Arbitrator and not the Court. Against that order

the claimant preferred an appeal in the Hon’ble

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High Court at Calcutta being F.M.A. No.809 of

1989.

7. According to the claimant, during pendency of the

said appeal, the claimant and the respondent

amicably settled the claims of the claimant on

account of the works executed and claims

submitted in the said suit for the total sum of

Rs. 22.42 lacs (twentytwo lacs and fortytwo

thousand) only. It appears from the records that

the claim of interest was not settled being the

part of the said settlement.

8. In pursuance of the said settlement the then

Additional General Manager (C.O.) of the

Corporate Office of the respondent by a letter

dated 15th January, 2002 directed the then

Additional General Manager of the respondent’s

Kolkata Zonal Office to make payment of the said

amount of Rs.22.42 lacs.

9. It also appears from the records that the respondent

did not make payment of the said amount of

Rs.22.42 lacs in spite of such settlement.

10. As a result, the claimant made an application to

the Hon’ble High Court for direction upon the

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respondent to make the payment of the said

settled amount.

11. In the affidavit-in-opposition filed by the

respondent in the application of the claimant for

payment of the said settled amount the respondent

claimed the amount of Rs. 22,29,000.00 on account

of recoveries. In support thereof the respondent

relied on a letter dated 26th March, 2002 of Sri

K. Chakraborty and several pages of a Measurement

Book. In the said letter there is no mention of

the Note Sheet, which was signed by the said K.

Chakraborty on 10th February, 2002 in support of

the said settled claim. It is pertinent to

mention that the said Sri K. Chakraborty was very

much involved in the said settlement,

participated and signed the relevant documents

pertaining to the said settlement.

12. Subsequently, by an order dated 9th December, 2005

the Hon’ble High Court at Calcutta was pleased to

dispose of the said appeal and application by

referring to the Chairman-cum-Managing Director

of the respondent all the disputes and

differences in between the parties to be

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adjudicated by the arbitration in terms of the

said Arbitration Clause.

13. By a letter dated 19.01.2006 the Claimant has

lodged a claim of the said settled amount of

Rs.22, 42,080.00. In support of the said claim to

be settled, the claimant has annexed several

documents. I shall deal with those documents

later on.

14. The respondent filed its counter statement of

fact and counter claim which was signed by the

said Sri K. Chakraborty, Unit Officer. In

paragraphs 3 and 7, the respondent has dealt with

the claim of the claimant and the counter claim

has been dealt in paragraphs 4 and 8 thereof. The

respondent also in support of its case has

annexed several pages of a Measurement Book and

the Final Bill.

15. It is relevant to be mentioned in this context

that the following persons were connected with

the subject matter of dispute at the relevant

period:

Sri Bikash Bhattacharjee - Unit Officer

Sri Subir Ghosh- the then Assistant Engineer

-
 9

Sri S. C. Mondal - Accounts Clerk

Sri K. Chakraborty - Unit Officer from 2000

Sri S.C. Mondal - Accountant

Sri Apurba Das - Unit Officer still today

Sri Sujit Das - Unit Officer after

retirement Of Sri K. Chakraborty

16. During the hearing of the arbitration proceedings

by a letter dated 2.2.2008 the respondent

submitted several pages of a Measurement Book

no.21 and copies of a Final Bill both dated

4.5.1984. Both the documents have been signed by

Sri Subir Ghosh as A.E. (C). These documents were

not disclosed in the earlier legal proceedings.

It is pertinent to mention that the Measurement

Book, Final Bill and the Note Sheet etc. in

connection with the said settlement were signed

by K. Chakraborty, Subir Ghosh, S.C. Mondal.

17. Both the parties have relied on various documents

in support of the respective cases, claims and

counter claims.

18. The claimant has relied on the following

documents of the respondent in support of the

settlement of its claims in the said suit against

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the execution of the work and claim for the said

amount of Rs.22, 42,080.00.

1. Letter dated 14.12.2001 of the respondent

signed by Sri K. Chakraborty, Unit Officer

showing Rs.22,42,080.00 as the out of court

settlement amount. The said letter was

addressed to the Sector-in-Charge of the

respondent with the request for onward

transmission to the Corporate Office of the

respondent.

2. Letter dated 15.1.2002 of the Corporate

Office signed by the Additional General

Manager (CO) addressed to the Additional

General Manager, Calcutta Sector Office for

acceptance of the final bill amount of

Rs.22.42 lacs as accepted by the claimant

with a request to settle the issue to avoid

any further complication in the matter.

3. Final bill prepared and signed by Sarva Sri

Subir Ghosh and K. Charkraborty on behalf of

the respondent.

4. Measurement Book [relevant pages] prepared

by the respondent
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19. During hearing of the arbitration proceedings the

claimant submitted its claim on losses on account

of occurrence of flood at the work site and

adverse consequence thereof. It is the case of

the claimant that as the agreement between the

claimant and the respondent is back-to-back to

the agreement between the respondent and the NTPC

Ltd, the Principal, all the terms and conditions

and all the benefits that would be accrued upon

on account of the claimant would be shifted upon

the claimant as all the said benefits were being

received by the respondent from NTPC Ltd. on

behalf of the claimant. The Respondent evaded

submitting statements of losses and subsequent

compensation amount paid by NTPC.

20. It is the specific submissions of the claimant

that during execution of the work the worksite

was inundated with flood water which adversely

affected the work resulting to loss and damage to

the claimant on various counts including

dewatering and clearance of mud/slush and hiring

of machinery for that purpose which have been

done by the claimant.

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21. Be that as it may, it is submitted by the

claimant that the respondent has received Rs.60

lacs from the NTPC Ltd. on account of flood and

the claimant is entitled to receive the said

amount from the respondent in terms of the back-

to-back agreement. It is the definite case of the

claimant that receipt of the said amount of Rs.60

lacs by the respondent on account of flood from

the NTPC Ltd. has been recorded in the relevant

account books including the Ledger Book of the

respondent.

22. In such view of the issue in the meeting held on

30.6.2006, I directed the respondent to submit

Measurement Sheet paid by NTPC Ltd. The

respondent was inter alia also directed to submit

the details of measurement submitted to NTPC Ltd.

area-wise while claiming for compensation due to

flood loss. But the respondent has not submitted

either of the documents or any other documents

and evidence in support of its case. In spite of

repeated directions the respondent neither

objected nor opposed to the claim of the claimant

on account of flood with any supporting document.

Just only by a mere letter the respondent

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objected to the said claim without backing of any

evidence.

23. In the circumstances, I hold that the claimant is

entitled to flood loss at least 50% i.e half of

the amount received by the respondent from NTPC

Ltd. The definite case of the claimant is that

the respondent received Rs.60 lacs and the

respondent has not counter the same by any

specific denial regarding quantum of the said

amount. So, I further hold that the claimant is

entitled to Rs.30 lacs with interest at the rate

of 18% per annum from 19-01-2006 the day I

entered upon the reference till the date of award

that is …………………….

Now, I, N. K. S. Gahlowt, the sole Arbitrator, do

hereby make and publish the Award on

………………………………….,2010 as hereunder:

CLAIM OF THE CLAIMANT

Awarded Amount

A. i. Principal amount of

Rs.22,42,080.00
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as settled - Rs.22,40,000.00

ii. Interest at the rate

of 18% p.a. from 14.12.2001

to ………………… - Rs.

B. i. Flood loss Rs.60,00,000.000

- Rs.30,00,000.00

ii. Interest from 19-01-2006

to ………………………. - Rs.

C. Cost of Arbitration - Rs. 50,000.00

Grand Total - Rs. …

[ Rupees ………………………………………………………………………….] only.

COUNTER CLAIM OF THE RESPONDENT

AWARD

1. Recoveries of Rs. 22,29,819.00 N I L

The payment of the said amount of Rs…………………………….is to

be made by the respondent NPCC Ltd. to the claimant TPL

within two months from the date of the Award and in default
 15

after expiry of the said two months interest at the rate of

18% p.a. shall be paid from the said expired date till

payment or decree whichever will be earlier.

This Award is made and published on ……………………………………….,

2010.

[N.K.S.GAHLOWT ]
Sole Arbitrator