ORDER
Dipak Misra, J.
1. In this revision preferred under Section 19 of the M.P. Madhyastham Adhiniyam, 1983 (for brevity, ‘the Act’), the assail is to the award dated 27-2-1993 passed by M.P. Arbitration Tribunal (in short, ‘the Tribunal’) in Reference Case No. 152 of 1999.
2. The exposition of facts which is essential to be stated is that the non-applicant as petitioner instituted the Reference Case No. 152 of 1999 putting forth a claim for a sum of Rs. 3,96,895/- due from the respondent therein on account of loss of over-head charges, loss of profit due to delay in compliance of the committed aspect by the respondent Corporation against the working cost and interest arising out of contract for construction of godowns and ancillaries. As put forth, the petitioner entered into a contract with the Warehousing Corporation on 21-12-1981, Ex. D-1, for a sum of Rs. 16,81,583/- for construction often thousand MT capacity godowns and ancillary works at Sagar. The time fixed for competition of the work was eight months excluding rainy season. As pleaded, the petitioner was allotted additional work of construction of 8000 MT capacity godown with boundary walls and internal roads at Sagar. The amount in respect of additional work was Rs. 19,20,000/- and the time allowed was eight months excluding the rainy season.
3. The case put forth before the Tribunal was that the claimant had completed the original 10000 MT capacity godowns and handed over on instalments as per the requirements of the respondents upto 21-6-1983. The additional capacity godown was getting delayed. It was alleged that respondent No. 3 was getting delayed on account of the non-supply of Tubular Trusses and, therefore, there was breach of contract and the claimant was compelled to tie down to the work and had to incur additional expenses during extension period and also lost the opportunity of earning profits by working elsewhere during the said period. The claimant put forth that he had made provision for earning profit of 10% of overhead expenses but due to delay on the part of the respondents he was also entitled to profit and on both heads, a claim of Rs. 3,96,895 was put forth in the petition. In addition, the compensation was claimed on escalation of price though the said claim was put forth in a different manner. The claim of the claimant was “resisted by the Corporation on the ground that there are two independent contracts and, therefore, the claimants can not be permitted to put forth a claim as if it was an additional work. Other claim put forth by the petitioner was disputed on the ground of limitation, absence of clause relating to escalation and grant of earning profit by the claimant.
4. The Tribunal addressed itself to the claims put forth by the claimant under the main contract. It addressed itself to the fact whether the agreement to construct 8000 MT godowns was an additional work or independent one. After discussing at length, the Tribunal came to hold that it was an independent, separate and distinct contract. The Tribunal further recorded a finding that the claimant was not entitled to claim any damage or compensation in connection with the work executed by him under the first contract. However, the Tribunal while dealing with the loss of overhead and loss of profit incurred due to non-supply of trusses, came to hold that the Corporation was at fault in supply of the trusses to the petitioner in time and non-supply only affected the work of three thousand MT godowns but not 8000 MT. On this foundation, the Tribunal concluded he claimant’s loss on account of overhead in respect of execution of three thousand MT godowns only. After so holding the Tribunal granted 10% towards overhead amounting to a sum of Rs. 54,109/- and Rs. 5,400/- towards loss of profit.
5. At this stage, it is relevant to state that an issue of limitation raised before the Tribunal but the Tribunal came to hold that the claimant/petitioner was not barred by time as claim was under Section 7-B of the M.P. Madhyastham Adhikaran Adhiniyam, 1983.
6. We have heard Mr. K.P. Mishra, learned Senior Counsel for the petitioner and Mr. V.R. Rao, learned Counsel for the claimant/respondent.
7. At the outset, we must clearly state that Mr. Rao has submitted that the claim for profit which has been granted to him by the Tribunal in Paragraph 24 as a notional damage be deleted. In view of that we would not advert with regard to the claim as regards notional damage on account of loss of profit.
8. Mr. Mishra, learned Counsel questioning the sustainability of the award has submitted that the Tribunal has grossly erred by holding that claim was not barred by limitation and there was no reason for grant of loss of on over heads on three thousand MT as if there was a fault on the part of the Corporation. In addition, it was contended by Mr. Mishra that the grant of interest at the rate of 12% by the Tribunal is absolutely excessive.
9. Mr. Rao, learned Counsel supporting the award passed by Tribunal contended that the final bill was accepted on 30th March, 1988 under protest and in the meantime the amendment in Section 7-B of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 had come into force on 24-4-1990 and by way of abundant caution, claimant submitted a quantified claim to the M.D. of the Corporation, Bhopal and hence, the finding recorded by the Tribunal is beyond assail.
10. We shall first deal with the limitation facet. Section 7-B of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 reads as under :–
“7-B. Limitation.– (1) The Tribunal shall not admit a reference petition unless,–
(a) the dispute is first referred for the decision of the Final Authority under the terms of the works contract, and (b) the petition to the Tribunal is made within one year from the date of communication of the decision of the Final Authority: Provided that if the Final Authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months.
(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the Final Authority under the agreement.”
On a perusal of the aforesaid provision (i.e., Section 7-B), it is perceptible that a different kind of limitation has been provided by the statute. It is not disputed before us that the final bill was paid on 30th March, 1988. A qualified claim was certified before Chief Engineer. By that time, the claim of the petitioner was alive as three years had not lapsed. In view of the aforesaid, we do not think that the Tribunal has erred in coming to hold that the claim put forth by the claimant was not barred by time.
11. The next facet that arises for consideration is for grant of loss of over-heads. In Paragraph 16, the Tribunal has dealt with this facet of the claim and has expressed the view as under :–
“16. As regards the petitioner’s claim for compensation on account of loss of overheads land loss of profit due to delay in supply of trusses, the petitioner has deposed in Para 4 of his deposition that up to the stipulated date of completion of work of second contract, the entire work, except the godown of 3000 M.T. was completed. This statement about the delay in supply of trusses stands corroboration by his letter Ex. P-6, dated 28-8-1983 and Ex. D-4, dated 25-5-1984 wherein he had complained about the non-supply of trusses to him. There is nothing in his cross-examination to impeach this testimony. On the contrary, there is a suggestion in the cross-examination (Para 11 of his deposition) that only the work of 3000 MT godown was delayed due to non supply of trusses for 3000 M.T. godown was impliedly admitted by the respondents. Moreover, the respondents witnesses Vishnu Kumar Mishra (D.W. 1) admitted in Para 9 of his deposition that the trusses for 3000 MT, godown were probably not supplied. In view of the evidence as discussed above, we conclude that the respondents did not supply the trusses to the petitioner in time and it’s non-supply had only affected the work of 3000 MT godown out of 8000 MT godown. The other work remained unaffected. The petitioner at best may be entitled to claim loss of overhead and loss of profit in respect of delay caused in the execution of partial work of 3000 MT godown only.”
The conclusion has been recorded in Paragraph 23. There could not be a dispute with regard to the calculation but with regard to the grant of claim; Mr. Mishra has submitted that the Tribunal has erred in appreciating the material on record. To appreciate the rival contentions, we have carefully perused the evidence and the documents that had been placed before the Tribunal. On a perusal of the same, we are of the considered opinion that there was non-supply of the trusses in time and that affected the work. In view of the aforesaid, the grant of the overhead expense is justified.
11. The next facet, which requires to be adjudicated, is with regard to the rate of interest. Submission of learned Counsel for the petitioner is that the grant of interest at the rate of 12% is excessive and that apart it is contended that the Corporation is going through a financial crunch. There is no statutory provision prescribing grant of particular rate of interest. Mr. Rao, appearing for the claimant has submitted that this Court may use its discretion in grant of interest. In view of the aforesaid, we are inclined to hold that the grant of interest should be restricted to 7.5% per annum on the awarded sum. The amount shall be computed and paid within a period of four months from the date of receipt of the order passed today.
12. The Civil Revision is allowed to the extent indicated above. There shall be no order as to costs.
