IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION No 53 of 2001
in
PETN. UNDER ARBITRATION ACT.No 49 of 1998
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EVEREST RAILWAY CONSTRUCTION PVT. LTD.
Versus
UNION OF INDIA
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Appearance:
1. MISC.CIVIL APPLICATION No. 53 of 2001
MR GR MALHOTRA for Petitioner No. 1
MR MG NAGARKAR for Respondent No. 1
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CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI
Date of Order: 11/01/2002
ORAL ORDER
#. The learned counsel for the applicant-contractor and
the Western Railways are heard.
#. On behalf of the applicant-contractor, it is pointed
out that because a common order was passed in a batch of
Arbitration Applications, without examining the subject
conditions of the contract, reference came to be made to
the Arbitrator by said common order with a mutual
agreement recorded of the parties as under:
“It is agreed that the claim of the contract and
the amount, if any awarded be restricted to 20%
of the value of the contract work”.
#. By this application prayer has been made to delete
the condition, namely, that the claim and award shall be
restricted to 20% of the amount of value of the contract
work. The learned counsel for the applicant-contractor
points out that unlike other Railway contracts, such a
condition restricting the claim and award to 20% of the
amount of the value of the contract work, is not in
existence in the present case. The learned counsel
appearing for the Western Railways however submits that
such a condition may not be expressly incorporated in the
contract but by reference to the contract and the cover
note in that regard, such a condition has to be read as a
part of the contract in question.
#. The learned counsel for the parties however agree
that this question also being one of the disputes, may be
liable to decision of the Arbitrator. It is also agreed
that the Arbitrator shall consider the dispute with
regard to restricting the claim and award to 20% of the
amount of the value of contract work, and thereafter, in
case the decision goes in favour of the
applicant-contractor, the applicant-contractor may be
allowed to amend the prayer by enhancing the claim
accordingly. The Misc. Civil Application stands
disposed of with these observations. Notice is
discharged. No order as to costs.
(D.M.Dharmadhikari, C.J.)
(sunil)