STATE TIMES NEWS
JAMMU: In the much publicised case of construction of Mughal Road from Bafliaz to Shopian in which State Government has filed arbitrational appeal in the High Court, Justice Alok Aradhe of J&K High Court Jammu Wing while quashing the Trial Court (District Court Shopian) order dated 2nd April 2016 directed to decide the same afresh by taking into account the grounds raised by the appellant. To cut short the delay, the Trial Court shall decide the objections preferred by the appellant after hearing both the parties within a period of three months.
Advocate General Jahangir Iqbal Ganai assisted by Deputy AG Ehsan Mirza appeared for the State whereas Senior Advocate Muzaffar Hussain Beigh (who is also the MP of ruling party) with Advocate Aruna Thakur appeared for Hindustan Construction Company Limited and others.
In this appeal preferred under Section 37 of Jammu and Kashmir Arbitration and Conciliation Act, 1997 (herein-after referred to as ‘the Act’), the appellant has assailed the validity of order dated 2nd April 2016 passed by the Trial Court by which the application preferred by the appellant under Section 34 of the Act has been rejected and the award passed by the Arbitral Tribunal dated 28th December 2014 has been modified insofar as it pertains to grant of interest for the post award period to 6 per cent. The total contract price as per the original agreement was Rs.214,40,00,000.
Justice Alok Aradhe observed that the controversy between the parties is whether the additional costs are payable for the total time extended in contract beyond 36 months, which was the contract period stipulated in the original contract agreement.
The contract period is stipulated in the original document. From the close scrutiny of the impugned order, it is evident that the Trial Court has not adverted its attention to the following issues that an amount of Rs. 50,54,85,963 has been awarded by the Arbitral Tribunal on account of additional overhead expenses which has been upheld by the Trial Court.
Advocate General Jahangir Iqbal Ganai for the appellant submitted that the Trial Court ought to have appreciated that the impugned award dated 28th December 2014 was contrary to the specific terms of the contract insofar as it deals with the extended period of contract.
It is further submitted that the Trial Court has misdirected itself on the issues of law and fact. In support of the aforesaid submissions, reference has been made to the decisions of the Supreme Court in various cases.
On the other hand, senior Advocate Muzaffar Hussain Beigh for the respondent, referred to the award in length and has submitted that the Tribunal has explained the difference between the price adjustment/escalation of cost and time related costs and has also dealt with legal basis of the claim and entitlement to additional costs under various sub-heads. It is further submitted that no issue has been raised in respect of ‘novation of contract’ before the Tribunal and the findings recorded by the Tribunal on 12 issues framed by it have not been challenged either in the application under Section 34 of the Act or even in the appeal preferred under Section 37 of the Act. It is pointed out that the award is well reasoned, coherent on facts, consistent on reasoning, based on undisputed evidence of documents and is guided by binding judicial precedents.
Justice Alok Aradhe further observed that it is evident that the objections raised by the appellant to the impugned award have not been adjudicated upon by the Trial Court. The claim No.2 has been dealt with by the trial Court in a casual and perfunctory manner which exhibits non-application of mind.
Justice Alok Aradhe after hearing both the sides in length quashed the impugned order dated 2nd April 2016 and remanded the matter to the Trial Court to decide the same afresh by taking into account the grounds raised by the appellant.
