AI Structured Summary
Not yet generated for this judgment
Judgment
The Court : This is an application under Section 11 of the Arbitration and Conciliation Act on an assumption that the dispute sought to be referred to
arbitration is covered under Clause 10 of the General Conditions of Contract.
The basis of the application appears to be an order passed on 24th February, 2017 by which the Kolkata Port Trust was directed to pay to the writ
petitioner no.1 a sum of Rs.3,94,34,035/against the eight supplementary invoices raised by the Kolkata Port Trust towards reimbursement of service
tax. The present claim is arising out of delayed payment of the service tax.
The writ petition was disposed of with the observation that after the writ petitioner no.1, who is the present applicant, has received a sum of
Rs.3,94,34,035/-. It would be open to the petitioner herein and/or Kolkata Port Trust to pursue their respective legal remedies in respect of any other
claims that they may have against each other before the appropriate forum with liberty to each of the said parties to defend the same.
In this application the petitioner alleged that the petitioner is entitled to claim interest at the rate of 18% per annum on Rs.2,39,45,504/- from 1st
January, 2014 to 10th March, 2017, on Rs.1,68,86,317/- (inclusive of the sum of Rs.13,97,786/-) being the interest borne by the petitioner by reason of
delay in payment caused by the deliberate and international neglect on the part of the respondent to reimburse the amount paid by the petitioner in the
first tranche from 1st January, 2015 to 10th March, 2017 along with further interest.
The petitioner proceeds on the basis that this claim is covered by the arbitration clause. Mr. Abhrajit Mitra, learned senior counsel appearing on behalf
of the Kolkata Port Trust submits that invocation is not in proper form as there was no demand made to the Chairman for appointment of Arbitrator
out of the panel maintained by the trustees.
Mr. Mitra submits that since the invocation is bad, this application must fail. Mr. Jishnu Saha, learned counsel appearing on behalf of the petitioner
submits that Clause 10.3 would be applicable provided it relates to matters covered under Clause 10.1. The Clause 10.1 reads:
“In all disputes, matters, claims, demands or questions arising out of or connected with the Interpretation of the Contract including the meaning of
Specifications, drawings, designs and instructions or as to the quality of workmanship or as to the materials used in the work or the execution of the
work whether during the progress of the works or after the completion and whether before or after the determination, abandonment or breach of the
contract the decision of the Engineer shall be final and binding on all parties to the contract and shall forthwith be given effect to by the Contractorâ€
Since this Court is of the view that the present claim is not covered by Clause 10.1, the procedure mentioned in Clause 10 cannot apply. On such
consideration, this application is dismissed. However, this shall not prevent the petitioner to pursue its claim in accordance with law.