{"id":12638,"date":"2011-11-04T00:00:00","date_gmt":"2011-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-hydroelectric-power-vs-jaiprakash-industries-ltd-anr-on-4-november-2011"},"modified":"2016-12-20T04:36:52","modified_gmt":"2016-12-19T23:06:52","slug":"national-hydroelectric-power-vs-jaiprakash-industries-ltd-anr-on-4-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-hydroelectric-power-vs-jaiprakash-industries-ltd-anr-on-4-november-2011","title":{"rendered":"National Hydroelectric Power … vs Jaiprakash Industries Ltd. & Anr. on 4 November, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
National Hydroelectric Power … vs Jaiprakash Industries Ltd. & Anr. on 4 November, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*        IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                      Judgment Reserved on: 2nd November, 2011\n                       Judgment Pronounced on: 4th November, 2011\n\n+                              RFA(OS) 41\/2010\n\n         NATIONAL HYDROELECTRIC POWER\n         CORPORATION LTD.                    ..... Appellant\n                  Through: Mr.Kailash Vasudev, Sr.Advocate\n                           with Mr.Sachin Datta and\n                           Ms.Gayatri Verma, Advocates\n\n                                      versus\n\n         JAIPRAKASH INDUSTRIES LTD & ANR    ..... Respondents\n                  Through: Mr.Lovkesh Sawhney and\n                            Mr.Durgesh Kumar Pandey,\n                            Advocates\n\n\n                               RFA(OS) 42\/2010\n\n         NATIONAL HYDROELECTRIC POWER\n         CORPORATION LTD                       ..... Appellant\n                  Through: Mr.Kailash Vasudev, Sr.Advocate\n                           with Mr.Sachin Datta and\n                           Ms.Gayatri Verma, Advocates\n\n                                      versus\n\n         HINDUSTAN CONSTRUCTION CO. LTD.\n         & ANR.                        ..... Respondents\n                 Through: Mr.Gaurav Singh, Advocate\n\n\n                               RFA(OS) 43\/2010\n\n         NATIONAL HYDROELECTRIC POWER\n         CORPORATION LTD                       ..... Appellant\n                  Through: Mr.Kailash Vasudev, Sr.Advocate\n                           with Mr.Sachin Datta and\n                           Ms.Gayatri Verma, Advocates\n    RFA (OS) 41\/2010 & connected matters                 Page 1 of 19\n                                   versus\n\n     HINDUSTAN CONSTRUCTION CO. LTD.\n     & ANR.                        ..... Respondents\n             Through: Mr.Gaurav Singh, Advocate\n\n                           RFA(OS) 44\/2010\n\n     NATIONAL HYDROELECTRIC POWER\n     CORPORATION LTD                       ..... Appellant\n              Through: Mr.Kailash Vasudev, Sr.Advocate\n                       with Mr.Sachin Datta and\n                       Ms.Gayatri Verma, Advocates\n\n                                  versus\n\n     CONTINENTAL CONSTRUCTION LTD.\n     & ANR.                         ..... Respondents\n             Through: Mr.Anil Dutt and Ms.Divya Jain,\n                      Advocates for R-1\n\n\n                           RFA(OS) 45\/2010\n\n     NATIONAL HYDROELECTRIC POWER\n     CORPORATION LTD                       ..... Appellant\n              Through: Mr.Kailash Vasudev, Sr.Advocate\n                       with Mr.Sachin Datta and\n                       Ms.Gayatri Verma, Advocates\n\n                                  versus\n\n     CONTINENTAL CONSTRUCTION LTD.\n     & ANR.                         ..... Respondents\n             Through: Mr.Anil Dutt and Ms.Divya Jain,\n                      Advocates for R-1.\n\n     CORAM:\n     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n     HON'BLE MR. JUSTICE S.P.GARG\n\n1. Whether the Reporters of local papers may be allowed\nRFA (OS) 41\/2010 & connected matters               Page 2 of 19\n         to see the judgment?\n\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.            At the outset it may be noted that the impugned
\norder     dated   11.2.2010        decides   objections   filed   by     the
\nrespondent under Section 30\/33 of the Arbitration Act 1940 to
\nan award made on 21.12.1996 by the sole arbitrator and the
\nappeals have been filed under Section 39 of the Arbitration Act
\n1940. The appeals cannot be thus captioned as \u201eRegular First
\nAppeal (OS)\u201f. The appeals have to be captioned \u201eFirst Appeal
\nagainst Order (OS)\u201f.          It is unfortunate that in spite of the
\nRegistry of this Court so intimating learned counsel for the
\nappellant and requiring the appeals to be filed as per format
\napplicable to a First Appeal against Order, the counsel has
\npersisted to have the appeals laid before the Court as Regular
\nFirst Appeals.\n<\/p>\n
2.            An unintentional error may be a mistake but
\npersistence with an error, in spite of being cautioned to take
\nreasonable care and rectify the error, would be a wrong and
\nthus we would be perfectly justified in dismissing the Regular
\nFirst Appeals filed against the impugned order as not
\nmaintainable, requiring the appellant to file First Appeal
\nagainst Order. But we do not do so in the interest of justice
\nand as conceded by learned senior counsel for the appellant,
\nwould treat the appeals as First Appeal against an Order i.e.
\n\u201eFAO (OS)\u201f.\n<\/p>\n
 RFA (OS) 41\/2010 & connected matters                             Page 3 of 19<\/span><\/p>\n
 3.           Pertaining to a contract entered into between the
\nappellant and the respondent, a dispute arose on the issue of
\npayment to be made by the appellant to the respondent for
\nthe non-tendered extra items of work executed by the
\nrespondent.\n<\/p>\n
4.           The contract being an item rate contract, for non-
\nspecified works i.e. extra items or for analogous items not
\nspecified in the schedule of quantities, the applicable clause of
\nthe contract based whereon payment had to be made by the
\nappellant to the respondent i.e. clause 18.2 (iii) provided as
\nunder:-\n<\/p>\n
      “18.2 (iii) Provided where some extra items and\/or
\n      analogous items are not available in the Schedule
\n      of Quantities, and for the variation in respect of
\n      individual items exceeding the prescribed limit of
\n      30% as aforesaid, the rates for such items(s) to be
\n      executed shall be determined by the Engineer-in-
\n      Charge on the basis of actual analyzed cost
\n      comprising of the cost of material to be supplied by
\n      the contractor (including transportation and taxes,
\n      levies if paid), labour actually engaged for the
\n      particular work, cost of operation of plant and
\n      machinery used for the work plus such percentage
\n      (as indicated in Schedule \u201eD\u201f) to cover the
\n      overheads, profits, contractor\u201fs supervision and
\n      other charges, if any. The decision of the Engineer-
\n      in-Charge in deriving rates as aforesaid, shall be
\n      conclusive and binding on the contractor.”\n<\/p><\/blockquote>\n
5.           The contract envisaged certain raw-material being
\nsupplied to the respondent by the appellant at a fixed price to
\nbe deducted from the running bills. The contract provides for
\na price escalation to be paid based on a formula under the
\ncontract i.e. as per clause 46.1 of the contract.\n<\/p>\n
 RFA (OS) 41\/2010 & connected matters                   Page 4 of 19<\/span><\/p>\n
 6.           It is not in dispute that pertaining to extra works,
\nraw-material supplied by the appellant to the respondent was
\nconsumed and while making payments under the running bills
\nthe appellant was determining the value of the work, for
\npurposes of labour escalation being determined, by including
\nthe said raw material and from the amount so determined,
\nprice of the raw material was subtracted i.e. the labour input
\nwas with respect to all materials consumed and likewise
\npertaining to the cost of operation of plant and machinery,
\noverheads, supervision charges, same method to finalize the
\nrunning bills was being adopted.             The dispute arose at the
\nstage of settlement of the final bill and at this stage, with
\nrespect to determining labour and other charges payable, the
\nappellant finalized the final bill by taking into account the cost
\nof material consumed and after deducting the cost of the
\nmaterial supplied by it, worked out the labour cost payable on
\nthe balance.        Same method was applied to determine other
\namounts payable towards operation of plant and machinery,
\noverheads, supervision charges etc.<\/p>\n
7.           What was the result?              With reference to an
\nexample, we can understand better.              Say, for a work done,
\nvalue of material supplied by the appellant was `100\/- and
\nvalue   of    the    material      brought   and   consumed   by     the
\nrespondent was also `100\/-. 10% was the agreed labour cost.
\nAs per the basis adopted to clear the running bills, price
\ntowards labour payable was determined at `100\/- + `100\/- =
\n`200\/- x 10% = `20\/-. As per the revised basis adopted by the<\/p>\n
 RFA (OS) 41\/2010 & connected matters                         Page 5 of 19<\/span>
\n appellant, the labour cost payable was worked out at `100\/- x
\n10% = `10\/-.\n<\/p>\n
8.           Likewise,      amounts     payable   towards   cost     of
\noperation of plant and machinery, overheads and contractors\u201f
\nsupervision were worked out and suffice would it be to state
\nthat the same resulted in lesser payment being determined to
\nbe paid by the appellant.\n<\/p>\n
9.           The justification of so doing, may be noted from the
\npleadings of the appellant before the learned Single Judge to
\nthe objections filed to the award dated 21.12.1996 by the
\nlearned sole arbitrator, who obviously held in favour of the
\nversion pleaded by the appellant and before the learned Single
\nJudge, challenge to the award was by the respondent who had
\nfiled objections under Section 30\/33 of the Arbitration Act
\n1940. The appellant, inter-alia, pleaded as under:-\n<\/p>\n
      “The materials are supplied by the corporation at
\n      fixed cost as per Schedule B of the contract. The
\n      cost of the materials supplied by the corporation is
\n      recovered during the payment of running bills of
\n      the contractor.      The arrangement is only for
\n      account purpose to effect recovery. The cost of
\n      material supplied by the corporation is included for
\n      arriving at the rate as the same cost is recoverable
\n      after the payment of rate. But for applying 25%
\n      mark-up, the cost of the materials supplied by the
\n      corporation is excluded from the total cost as per
\n      GCC 18.2 (iii).”\n<\/p><\/blockquote>\n
10.          The dispute before the arbitrator was whether the
\n25% point mark-up had to be applied to the value of the work
\non the total cost of material used or only on the cost of<\/p>\n
 RFA (OS) 41\/2010 & connected matters                       Page 6 of 19<\/span>
\n material supplied by the respondent. It not being in dispute
\nthat 25% point mark-up had to be given effect to.\n<\/p>\n
11.          Whereas the stand of the respondent, is but
\nobvious. The stand had to be the one which would bring in
\nmore money and obviously was that the mark-up had to be
\ngiven effect to on the total value of the materials consumed
\nand the stand of the appellant obviously was, the one which
\nwould render it liable to pay a less amount, i.e. as per its
\npleading noted in para 9 above.\n<\/p>\n
12.          After noting clause 18.2 (iii), the learned arbitrator
\nagreed with the stand taken by the appellant and the
\nreasoning of the learned arbitrator is as under:-\n<\/p>\n
      “In case of non-tender items of work which fall in
\n      the category of deviated and extra items, a
\n      special formula has been laid down in Clause
\n      18.2(iii) for determining the cash amount payable
\n      to the contractor.      Clause 18.2(iii) specifically
\n      mentions that the materials “supplied by the
\n      Contractor” will be included in determining the
\n      total cost, but does not mention that the costs of
\n      materials supplied by the Corporation will also be
\n      included. In case of deviated and extra items
\n      under Clause 18.2(iii), the cash amount payable as
\n      cost has to be determined purely on the basis of
\n      the actual cost incurred by the Contractor plus
\n      such percentage as is indicated in Schedule D. As
\n      there is no previously agreed total amount of
\n      consideration payable for the work under Clause
\n      18, it has to be worked out on the basis of the
\n      norms laid down in Clause 18.2(iii). There being
\n      no    previously    agreed    quantum     of    total
\n      consideration with an in-built cost of material in
\n      the amount payable, the question of adding the
\n      cost of materials to be supplied by the Corporation
\n      to the analyzed cost and then deducting the same
\n RFA (OS) 41\/2010 & connected matters                     Page 7 of 19<\/span>
\n      from that amount of consideration does not arise.
\n     The cash value of materials supplied by the
\n     Corporation in such a case becomes wholly
\n     irrelevant when the cost of the item of work is
\n     being determined in terms of formula laid down in
\n     Clause 18.2(iii).\n<\/p><\/blockquote>\n
     The amount of cost for deviated and extra items
\n     of work has to be determined only on the basis of
\n     the terms of Clause 18.2(iii).    When cost is
\n     determined under a special formula, it becomes a
\n     formula-based cost structure and it has to be
\n     determined strictly on the basis of the
\n     components required to be considered for
\n     determining the cost. Under Clause 18.2(iii), cost
\n     means actual analyzed cost, comprising of the
\n     various components mentioned therein. And, the
\n     mark-up of 25% mentioned in Schedule D is to be
\n     added only to the cost so determined under
\n     Clause 18.2(iii).\n<\/p><\/blockquote>\n
     It has been contended by the Contractor that the
\n     “material to be supplied by the Contractor” in
\n     Clause 18.2(iii) means all the material used by the
\n     Contractor in the execution of the work, and that it
\n     is immaterial whether the source of supply of the
\n     material is the Corporation or the open market.
\n     The Corporation on the other hand pleads
\n     otherwise. There is no merit in the contention of
\n     the Contractor.        Clause 23 of the General
\n     Conditions of Contract deals with the supply of
\n     materials. Under sub-clause 23.1, the Contractor
\n     has to provide and arrange at his own expense all
\n     materials “except those listed and specified in
\n     Schedule B”. Under sub-clause 23.4 again, the
\n     term “the materials listed in Schedule B which the
\n     Corporation has agreed to supply to the
\n     Contractor for the work under the contract” has
\n     been used which shows that the intention of the
\n     parties is to treat the material supplied by the
\n     Corporation as belonging to a separate class. In
\n     sub-clauses (i), (ii) and (iii) of Clauses 23.4 and in
\n     various other clauses in the contract, there is a
\nRFA (OS) 41\/2010 & connected matters                     Page 8 of 19<\/span>
\n      clear indication that the material provided, issued,
\n     or supplied by the Corporation falls in a Special
\n     category. Clauses 23.1, 23.2 and 23.4 clearly
\n     make a distinction between materials supplied by
\n     the Contractor and the materials supplied by the
\n     Corporation. Source of supply is the determining
\n     factor. Even Special Condition 4 refers to issue of
\n     materials to the contractor for use in the
\n     execution of the work. The basic source of supply
\n     remains the Corporation.         Special condition
\n     No.21.2 runs as under:-\n<\/p><\/blockquote>\n
        “21.2          In the Contract, unless it is
\n        specifically provided that a particular facility,
\n        material or any other thing is to be provided
\n        by the Corporation at its own cost, it is agreed
\n        by the parties that the same shall be provided
\n        by the Contactor at his own cost.”\n<\/p><\/blockquote>\n
     Clause 21.2 contemplates that all materials have
\n     to be supplied at the cost of the supplier. If the
\n     contractor supplies the material, it has to be at
\n     the contractor\u201fs cost. If the material is supplied
\n     by the Corporation, then it has to be at the
\n     Corporation\u201fs cost. It means that whoever incurs
\n     the cost in procuring the material or invests the
\n     money to obtain the material, will be deemed to
\n     be the supplier of that material. In the case of
\n     material supplied by the Corporation either in
\n     terms of Schedule B or in terms of Annexure A,
\n     total investment in procuring the material is made
\n     by the Corporation. At no point of time, the
\n     contractor invests any money in procuring these
\n     materials.   The supplies under Schedule B or
\n     Annexure A must accordingly be deemed to be
\n     supplied by the Corporation and not by the
\n     contractor.\n<\/p><\/blockquote>\n
     Further, in Clause 18.2(iii), except in respect of
\n     “materials”, no distinction has been made about
\n     the source of supply. In respect of operation of
\n     the plant and machinery used in the work, no
\n     mention is made about the source of procurement
\n     of supply. It is only in respect of cost of material
\nRFA (OS) 41\/2010 & connected matters                    Page 9 of 19<\/span>
\n       that the words “to be supplied by the contractor”
\n      have been used. It is thus apparent that the
\n      words “supplied by the Contractor” have been
\n      used to distinguish and exclude the material
\n      “supplied by the Corporation”. The supply of
\n      material by the Corporation is in response to its
\n      promise and obligation to do so under the contract
\n      and the contractor does not have to supply such
\n      material as is required to be supplied by the
\n      Corporation. It is obvious that materials supplied
\n      by the Corporation either in terms of Schedule B
\n      or Annexure A cannot be deemed to be materials
\n      supplied by the Contractor. The cost of such
\n      material cannot accordingly be added for
\n      determining the total cost which is to be
\n      calculated on the basis of “actual analyzed cost”
\n      of components mentioned in Clause 18.2(iii). The
\n      cost of material supplied by the Corporation either
\n      in terms of Schedule B or Annexure A not being a
\n      component for determining the total cost payable
\n      to the contractor cannot be taken into account for
\n      the purpose of enabling the mark-up under
\n      Schedule D, it has to remain out.”\n<\/p><\/blockquote>\n
13.          The learned Single Judge has opined to the contrary
\nand the reasoning, in paras 7 to 9 of the impugned judgment
\nand order dated 11.2.2010 is as under:-\n<\/p>\n
      “7. One thing which needs to be clearly kept in
\n      mind, while deciding the interpretation of Clause
\n      18.2(iii), is the spirit or the heart or the object of
\n      this Clause. In my opinion, the spirit of this
\n      provision is in the following line as found in the
\n      clause:\n<\/p><\/blockquote>\n
         “….. labour actually engaged for the particular
\n         work, cost of operation of plant and machinery
\n         used for the work plus such percentage (as
\n         indicated in schedule D) to cover the<\/p>\n
RFA (OS) 41\/2010 & connected matters                     Page 10 of 19<\/span>
\n          overheads, profits, contractor\u201fs supervision
\n         and other charges, if any…………”\n<\/p><\/blockquote>\n
      I say that this line is the spirit and object of the
\n      clause because this line gives the reason for the
\n      mark-up given to a contractor i.e. the mark-up is
\n      for the elements of overheads, profits and other
\n      expenditure which has to be incurred by the
\n      contractor for the work done of the extra items.
\n      This line also makes it clear that overheads;
\n      supervision cost, other expenses and addition by
\n      way of profits are not to be confined only to the
\n      cost of the work of the extra\/deviated items minus
\n      the cost of the material which is supplied by the
\n      respondent\/employer but are applied to the total
\n      value of the extra work. Once we keep into focus
\n      this clear intent, purpose and the heart of Clause
\n      18.2(iii), and so very much expressly stated in this
\n      very clause, things, in my opinion, automatically
\n      fall into place, and which clear object of the clause
\n      the arbitrator fell into a clear and apparent
\n      illegality in overlooking, and thereby has
\n      misconducted himself and the proceedings.\n<\/p><\/blockquote>\n
      8.    The intention of the parties to apply mark-up
\n      to the total value of extra work is also clear from a
\n      portion of Schedule B of the contract, however,
\n      whether it is unintentional one does not know.
\n      The said relevant portion of Schedule \u201eB\u201f of the
\n      Contract     though    extremely      relevant    and
\n      necessary has not been reproduced by the
\n      Arbitrator though he has otherwise reproduced the
\n      other portions of Schedule B.          That relevant
\n      portion of Schedule \u201eB\u201f is as under:\n<\/p><\/blockquote>\n
         “Materials for the work which will be issued to
\n         the contractor, cost whereof will be recovered
\nRFA (OS) 41\/2010 & connected matters                    Page 11 of 19<\/span>
\n          from the contractor at the rates mentioned
\n         below”\n<\/p><\/blockquote>\n
      This line shows that the bill which has to be drawn
\n      for payment upon the respondent\/employer-owner
\n      comprises of the total value of the work of the
\n      extra items\/deviated items i.e. including the cost
\n      of material supplied by the respondent and cost
\n      has to be recovered from the contractor. The
\n      intention of this portion of Schedule \u201eB\u201f is further
\n      clarified in paragraphs 23.4(i) and (vii) already
\n      reproduced above, and which paragraphs show
\n      that till the materials which are issued by the
\n      respondent are not incorporated in the works,
\n      they continue to be in trust with the objector and
\n      in ownership of respondent, however, once they
\n      are incorporated in the works, then not only the
\n      ownership therein of the respondent ceases, they
\n      become part of the work done by the contractor
\n      and have to form a part of the bill which is drawn
\n      upon the respondent for payment of that work and
\n      from which bill the employer \u201erecovers\u201f the cost of
\n      material it supplies. Dilating further, what I am
\n      saying is that, the value of the work includes
\n      therein the total cost of entire material included in
\n      such work and not only a portion of the cost of
\n      material incorporated in the works as provided by
\n      the contractor.     By the relevant language of
\n      Schedule \u201eB\u201f, Clauses 18.1; and 23.4(i) and (vii);
\n      the cost of the material supplied by the
\n      respondent necessarily becomes part of the bill
\n      and consequently also of the value and total cost
\n      of such work which has to be paid for by the
\n      respondent to the petitioner. Of course, since the
\n      material was in fact supplied by the respondent to
\n      the petitioner, ultimately when final payment has
\n      to be made, the value of this material supplied is
\nRFA (OS) 41\/2010 & connected matters                    Page 12 of 19<\/span>
\n       deducted\/recovered from the amount of the bill.
\n      Let us take an example and a theoretical case to
\n      understand the mechanics.         Suppose material
\n      which is incorporated in the work was supplied by
\n      a third person, and not the respondent, then, the
\n      petitioner would have had to pay the cost of
\n      material to such third person. In this case, such
\n      third person is the owner because certain material
\n      incorporated in the work is supplied is by the
\n      owner-respondent and consequently the amount
\n      of such material is deducted\/recovered by the
\n      owner before making payment of the Bill. The
\n      respondent, therefore, wears two hats at the same
\n      point of time i.e. one of an owner and one of the
\n      supplier. In the hat of the employer\/owner the
\n      respondent is bound to pay for the work done of
\n      the extra items\/deviated items and when it puts
\n      on such hat of such employer\/owner it pays for the
\n      cost of the work done, but, when it puts on the
\n      different hat of a supplier of materials, it takes the
\n      cost\/price with respect to the material which is
\n      supplied      to    the    contractor\/objector      by
\n      reducing\/recovering from the Bill the value of the
\n      material which it supplies. In view of the aforesaid
\n      discussion and the observations, when we
\n      accordingly look at the expression as found in
\n      clause 18.2(iii) of “material to be supplied by the
\n      contractor”, it becomes very clear that the
\n      material to be supplied by the contractor is very
\n      much the total value of the extra work because it
\n      is for this total value of extra work which is done
\n      by the contractor that the contractor raises a bill
\n      upon the respondent for payment, subject of
\n      course, to adjustment of reduction therefrom of
\n      the value of the material which the respondent
\n      supplies to the petitioner. Be it noted that the
\n      words used in this clause are “material supplied
\nRFA (OS) 41\/2010 & connected matters                     Page 13 of 19<\/span>
\n       by the contractor” and not the “net value of
\n      material supplied by the contractor although
\n      stated otherwise in the Bill”.\n<\/p><\/blockquote>\n
      9.     That the interpretation which is being
\n      adopted by me, is the only possible interpretation
\n      for a reasonable man to have taken in the
\n      admitted facts and circumstances and the
\n      applicable clauses of the contract, is strengthened
\n      when we refer to the expressions of “labour, cost
\n      of operation of plant and machinery” as found in
\n      Clause 18.2(iii).    The expression “material” as
\n      found in Clause 18.2(iii) in the scheme of the
\n      contract, has surely to be read noscitur a sociis
\n      with the expressions “labour cost, cost of plant
\n      and machinery” used for the work pertaining to
\n      extra items\/deviated items. The mark up is on the
\n      total of the cost of ingredients of labour,
\n      machinery etc. employed in the work, and it is
\n      nobody\u201fs contention that the labour cost or cost of
\n      operation of plant and machinery contained in an
\n      extra item\/deviated items is broken up into two
\n      parts, one part of such cost of labour and running
\n      cost of plant and machinery attributable to the
\n      cost of material supplied by the employer and
\n      which is to be reduced from the bills which are
\n      raised in accordance with Clause 18.2(iii) and the
\n      other part of labour or machinery cost attributable
\n      to the material supplied by the petitioner is to be
\n      paid for under the bills. The line which is found in
\n      Clause 18.2(iii) runs continuously from “material”
\n      till “the cost of operation of plant and machinery”,
\n      and it is not that such line and expressions
\n      therein, can be merely for the convenience of the
\n      respondent, bifurcated in two parts, one part till
\n      material and other part till machinery. Once the
\n      cost of labour and cost of running of plant and
\nRFA (OS) 41\/2010 & connected matters                   Page 14 of 19<\/span>
\n       machinery is taken as a whole with respect to the
\n      extra items\/deviated items for marking up
\n      purposes, i.e. not removing from such ingredients
\n      of the work that proportion attributable to the
\n      value of the work pertaining to the cost of material
\n      supplied by the respondent, then, I do not find any
\n      valid basis to cut down the scope of expression
\n      “cost of material to be supplied by the contractor”
\n      only to the material which is supplied by the
\n      contractor and not the total material incorporated
\n      in the work of extra deviated items. A clear case
\n      for application of the maxim noscitur a sociis.
\n      When we take such reading of this clause, it
\n      becomes abundantly clear, read alongwith heart
\n      of this provision being the intention of the contract
\n      to give a mark up to the contractor on what is the
\n      total cost and value of an extra work\/deviated
\n      items, we find that the Arbitrator has strived to
\n      interpret the clause in a direction which gives his
\n      finding a colour of perversity. A perverse reading
\n      of the clause so as to read therein a meaning,
\n      which on a complete reading of the clause and the
\n      other applicable clauses, defeats the very
\n      intention of giving mark-up for the value of the
\n      additional extra items\/deviated items amounts to
\n      the Arbitrator misconducting himself and the
\n      proceedings.”\n<\/p><\/blockquote>\n
14.          Challenging       the     impugned   decision,   Sh.Kailash
\nVasdev learned senior counsel for the appellant urged that it is
\nsettled law that an arbitrator is the final judge to interpret a
\ncontract between the parties and drawing our attention to the
\naward, relevant portions whereof which have been noted
\nhereinabove in para 12, it was highlighted that the learned
\narbitrator has gone into the issue.          Counsel highlighted that<\/p>\n
RFA (OS) 41\/2010 & connected matters                           Page 15 of 19<\/span>
\n the view taken by the arbitrator is a correct view and without
\ngoing into the merits of the view taken by the learned Single
\nJudge, upon the premise that the said view was also a possible
\nview, learned senior counsel urged that it was settled law that
\nwhere two views were possible to be taken with respect to the
\ninterpretation of an agreement, a Court cannot substitute its
\nview from the one taken by the arbitrator. So arguing, learned
\ncounsel hastened to add that the view taken by the learned
\narbitrator was the only view possible.\n<\/p>\n
15.          We have extracted hereinabove in para 4 above
\nclause 18.2 (iii) which is at the center of the debate and we re-
\nnote   the    same      by    breaking   its   conceptual   whole    into
\nidentifiable limbs. We break the same as follows:-\n<\/p>\n
Where some extra items and\/or analogous items are not
\navailable in the Schedule of Quantities, and for the variation in
\nrespect of individual items exceeding the prescribed limit of
\n30% as aforesaid,
\nthe rates for such items(s) to be executed shall be determined
\nby the Engineer-in-Charge
\non the basis of actual analyzed cost\n<\/p>\n
(a)       comprising of the cost of material to be supplied by
\nthe contractor (including transportation and taxes, levies if
\npaid),\n<\/p>\n
(b)          labour actually engaged for the particular work,\n<\/p>\n
(c)          cost of operation of plant and machinery used for
\nthe work\n<\/p>\n
(d)        plus such percentage (as indicated in Schedule \u201eD\u201f)
\nto cover the (i) overheads, (ii) profits, (iii) contractor\u201fs
\nsupervision and (iv) other charges, if any.\n<\/p>\n
RFA (OS) 41\/2010 & connected matters                          Page 16 of 19<\/span><\/p>\n
 16.          The clause analysis, as aforesaid done by us, would
\nmake it clear that the subject of the clause is the situation
\nwhere extra items or work, not available in the Schedule of
\nQuantities, have been executed by the respondent requiring
\nprice payable for said work to be determined.\n<\/p>\n
17.          The second limb of the clause requires not one, but
\nfour determined constants to be worked out and the same are\n<\/p>\n
(a) cost of material to be supplied by the contractor (b) labour
\nactually engaged for the particular work, (c) cost of operation
\nof plant and machinery used for the work (d) plus such
\npercentage (as indicated in Schedule \u201eD\u201f) to cover the (i)
\noverheads, (ii) profits, (iii) contractor\u201fs supervision and (iv)
\nother charges, if any.\n<\/p>\n
18.          Now, the words \u201ethe particular works\u201f pertaining to
\nthe labour element and the words \u201ethe work\u201f pertaining to the
\ncost   of   operation      of   the    plant   and   machinery     are     of
\nimportance, and the learned Single Judge has rightly opined
\nthat the learned arbitrator has totally misread the clause in
\nquestion. As broken up by us, it is apparent that while working
\nout the effect of clause 18.2 (iii) of the contract, labour
\ncharges have to be paid for the labour engaged for the extra
\nwork and in relation to operation of plant and machinery the
\nprice has to be paid for the extra work and this would mean
\nirrespective of whether a particular raw material consumed in
\nthe work was supplied by the appellant or was brought at site
\nby the respondent, the labour and costs for operating plant
\nand machinery as also supervision charges had to be for the
\nentire work.\n<\/p>\n
RFA (OS) 41\/2010 & connected matters                             Page 17 of 19<\/span><\/p>\n
 19.          The matter can be looked at from another angle.
\nThe clause in question requires, for extra work done,
\nreimbursement to the contractor for the cost of material
\nsupplied by the contractor and thus the cost of material
\nsupplied by the owner of the work has expressly been
\nexcluded, but qua labour actually engaged and cost of
\noperation of plant and machinery, the reimbursement has to
\nbe for \u201ethe work\u201f.       The work would mean the resultant work
\nensuing from the labour spent and the machinery used to work
\nupon the materials supplied either by the contractor or the
\nowner of the work. Thus, the said elements emanate from or
\nwith respect to the work and not the material for the reason
\nwhen individual components are put together by spending
\nlabour and using machinery, a work i.e. a new entity comes
\ninto existence.\n<\/p>\n
20.          There is no dispute with the proposition that an
\narbitrator is the final judge to interpret a contract or a clause
\nwithin a contract between the parties.       But that would not
\nmean that his ipse dixit would be accepted. If the reasoning of
\nthe arbitrator shows that he has digested every word, phrase
\nand sentence in a clause and thereafter reflected thereon,
\nhowsoever faulty may be the reasoning, subject to the fault
\nnot reaching the level of perversity, the award would be
\nimmune for challenge before a Court.           But, where it is
\nevidenced that the learned arbitrator has ignored words,
\nphrases or sentences in a clause while interpreting the same,
\nit would amount to an arbitrator misconducting himself
\ninasmuch as it would be a case of a legal misconduct. Legal<\/p>\n
RFA (OS) 41\/2010 & connected matters                   Page 18 of 19<\/span>
\n misconduct would embrace a situation where the person
\nrequired to adjudicate a lis ignores words, phrases or
\nsentences in a clause since this would amount to the arbitrator
\nsubstituting the contract between the parties and needless to
\nstate the arbitrator would breach the mandate to the arbitrator
\ni.e. enforce the contract between the parties.\n<\/p>\n
21.          We adopt the reasoning of the learned Single Judge
\nas also the illustrations given by the learned Single Judge as
\nper para 7 to 9 of the impugned decision, which we have
\nextracted hereinabove in para 13 above and the same may be
\nread as part of our reasoning; supplementing the same with
\nour reasoning hereinabove, we dismiss the appeals and as per
\nthe ethos of the impugned decision, leave the parties to bear
\ntheir own costs.\n<\/p>\n
                                        (PRADEEP NANDRAJOG)
\n                                            JUDGE<\/p>\n
                                           (S.P.GARG)
\n                                              JUDGE
\nNOVEMBER 04, 2011
\nmm<\/p>\n
RFA (OS) 41\/2010 & connected matters                    Page 19 of 19<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court National Hydroelectric Power … vs Jaiprakash Industries Ltd. & Anr. on 4 November, 2011 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 2nd November, 2011 Judgment Pronounced on: 4th November, 2011 + RFA(OS) 41\/2010 NATIONAL HYDROELECTRIC POWER CORPORATION LTD. ….. Appellant Through: Mr.Kailash […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-12638","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nNational Hydroelectric Power ... vs Jaiprakash Industries Ltd. & Anr. on 4 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/national-hydroelectric-power-vs-jaiprakash-industries-ltd-anr-on-4-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National Hydroelectric Power ... vs Jaiprakash Industries Ltd. & Anr. on 4 November, 2011 - 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