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Judgment
Arindam Sinha, J
Mr. Mohanty, learned senior advocate appears on behalf of appellant and submits, the appeal is directed against judgment dated 16th September,
2015 passed by the learned District Judge rejecting his client’s challenge to award dated 14th March, 2012. He submits, the facts stood admitted
in the reference but the Tribunal made some findings on ‘force majeure’, which are perverse. The Court below did not appreciate the perversity
and hence the appeal. He refers to paragraphs 18 to 22 in the award. He submits, paragraph-18 was a contention on ‘force majeure’ that the
Tribunal decided in favour of his client. The second contention is in paragraph-19. The contention was that by reason of lock out in Bharat Works
Factory of claimant, from 15th November, 1998 to 31st January, 1999, there was delay. This was construed as a ‘force majeure’ situation by
the Tribunal. Mr. Mohanty accepts that paragraph-20 dealing with the super cyclone on 29th October, 1999 was an act of God and therefore covered
by ‘force majeure’. He however submits, the amount of latitude shown by the Tribunal on holding in favour of claimant on this contention was
beyond the evidence. Appellant itself resumed work activities in the Poet fifteen days after the cyclone but claimant’s personnel admittedly visited
two months after it. Next contention of ‘force majeure’ was dealt with in paragraph-21 of the award. It was on strike resorted to by employees
of appellant. Paragraph-22 was contention raised by claimant regarding hooliganism resorted to by passing connected with previous contractor of
appellant. He submits, the Supreme Court by judgment dated 5th January, 2022 in Civil Appeal nos.169-170 of 2022 (State of UP v. M/s. Mcdowell
and Company Ltd.) held that for invoking ‘force majeure’, there must be some act of God.
On query from Court Mr. Chaudury, learned advocate appearing on behalf of respondent submits, cancellation clause-23 in general conditions of
contract stands quoted under paragraph-24 in the award.
The Court below in paragraph-11 of impugned judgment recorded the facts. Paragraph-11 is reproduced below.
“11.On careful scrutiny of the record, impugned Arbitral award in the light of submission of both the Counsel for the petitioner and the O.P., it shows the
following are not the disputed facts:
(i) PPT had floated a tender for execution on the work, Designed, Manufacture, supply, Erection and commissioning of one number of stacker cum reclaimer of
capacity of 2500 MTPH,35 meters Boom length.
(ii) O.P. (claimant’s company) offered contract value of Rs.823 lakhs.
(iii) Arbitration Agreement was executed in between the claimant company and respondent-PPT with certain terms and conditions to commence the work on
26.3.1998 and its completion on 25.5.2000.
(iv) On 28.3.98 the claimant company deposited 10% of the contract value i.e. Rs.82,30,000/- in shape of Bank Guarantee towards performance security.
(v) 99.995% of the contract work was compelted and balance of 0.005% was remained to be executed. On the request of both the parties, the same was extended
up to 11.6.2001.
(vi) On dtd. 13.7.2001, the contract was cancelled with immediate effect with forfeiture of performance security.
(vii) Balance of 0.005% of the contract work was completed by the respondent-PPT by other agencies under its supervision.â€
Appellant will be finally heard on 20th January, 2022. Court will be interested to hear on applicability of the cancellation clause to the facts. Court
also notices that the agreement provides for expansion of meaning of ‘force majeure’ by several clauses.
List on 20th January, 2022.
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