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Judgment
Arindam Sinha, J
Mr. Mahanta, learned advocate led by Mr. A.R. Dash, learned advocate appears on behalf of appellant. Mr. Mahanta submits, impugned is judgment dated 15th December, 2017 made by the Court below upholding award dated 18th July, 2016 in favour of respondent contractor. He refers to agreement dated 3rd June, 2011 between his client and respondent, clause-52 and several sub-clauses thereunder. Nature and scope of work provided, he submits, was for the agency to transport 3 lakh cubic meter of low grade dump located near Jagar Quarry and feed to the installed screen and crusher plant having average hauling distance of 1.5 kms., to produce fines. The spurious materials were to be segregated. The fines were to be shifted to Central Stock Yard, while the spurious materials to the designated dump. In breach of this condition, being an essential condition, respondent set up the screening and crusher plant at zero distance from Jagar Quarry. By reason of this breach, running bills of respondent were held up on settlement. Mr. Mahanta relies on section 54 in Contract Act, 1872 to submit respondent not having fulfilled its obligation under the contract, was not entitled to payment. Respondent thereafter shifted screening operation as required but soon after abandoned the work. In the circumstances, claims of respondent in the reference, should not have been allowed. The award was in violation of mandatory provisions in sub-section (3) of section 28, Arbitration and Conciliation Act, 1996 in not taking into account terms of the contract applicable to the transaction. On query from Court Mr. Mahanta submits, there is no provision in the agreement requiring his client to identify the spot, where the screen and crusher plant was to be set up.
Drawing attention to clause 71 of the contract Mr. Mahanta submits, inter alia, termination of contract was provided, thereby. The contractor abruptly abandoned the work.
Mr. Samal, learned advocate appears on behalf of respondent contractor. He submits, screen and crusher plant was set up at the place indicated by appellant through its Manager (Mining) as per clause-13 of the agreement. This is because forest clearance by appellant had not been had on any site in its leasehold to, be used to set up the plant. Later, on requirement upon clearance had, the plant was shifted. His client then was told to stop production by letter dated 17th December, 2011, of the Regional Manager, tendered as Ext.22 in the reference.
Court had made query of appellant regarding whether it was relying on the average hauling distance requirement under nature and scope of work, provided for in clause-52 as an essential term. Nothing could be demonstrated for finding that it was. Clause 52.2(a) simply talks about average distance as shown in anneuxre-1 to the agreement. Annexure-1 gives information sheet of Gandhamardan Iron Ore Mines. Relevant information regarding average hauling distances are extracted and reproduced below.
“INFORMATION SHEET OF GANDHAMARDAN IRON ORE MINES
Weighted average distances:
a) Low grade dump to screen & crusher plant- 1.5 KM
b) Screen & crusher plant to stock yard via W/B-1.0 KM
c) Screen & crusher plant to OB dump- 1.5 KM
d) Dump No.II to Dump No.I- 1.0 KM”
On further query from Court, necessity on average hauling distance could not be demonstrated on behalf of appellant, considering also that admittedly the screen and crusher plant was set up at zero distance of the acquiring site, the fines segregated from spurious materials and hauled to Central Stock Yard by respondent. In the circumstances, the indication by information of hauling distances cannot be found to be an essential term of the contract, to hold breach thereof by respondent. It also appears that initially the screen and crusher plant was set up at a place indicated by appellant itself.
The other contention is regarding abandonment of work to be seen as wrongful termination of the contract by respondent. On perusal of clause 71 providing for, inter alia, termination it is found that in event of completion or termination, respondent was obliged to do certain things like clearing out the site. On default, the clause provided for appellant to have done so at expense of the contractor. On query from Court response was, no counter claim was filed in the reference by appellant.
Perused impugned judgment. There is no reason to interfere. It is confirmed.
The appeal is disposed of.
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