Before, The Adjudicator appointed in terms of Clause 6.1.1. of the General

Conditions of Contract for Ganga Water Supply Package for Barauni

Thermal Power Station, Phase – I (2 x 110 MW) and Phase – II (2 x

250 MW) (Supply-cum-Erection at Barauni, District Begusarai)

In the matter of Adjudication proceeding

Between

1. McNally Bharat Engineering Co. Ltd., a company registered under the

Companies Act, 1956 having its registered office at 4, Mangoe Lane, 7th

Floor, Kolkata – 700 001.

2. Tantia Constructions Ltd., a company registered under the Companies

Act, 1956 having its registered office at 25/27, Netaji Subhas Road,

Kolkata- 700 001 (On the joint request of contractor no. 1 and

employer, noticed vide order dated 9th of September, 2015).

.... Claimants

And

Bihar State Power Generation Co. Ltd. (Earlier Known as Bihar State

Electricity Board), through its Chief Engineer (P&D), Vidyut Bhawan,

Bailey Road, Patna. .... Employer

Name of counsels of Claimants : (1) Mr. Abhishek Kumar, (2) Ms. Aparna Arun, (3) Mr. Akshay Amritanshu,

For the Employer : Mr. R.R. Prasad, Adv.

Mr. Justice Akhilesh Chandra, Former Judge, Patna High Court, Patna,

10th day of November, 2015, Patna

Memorandum of Adjudication1/61

The above Adjudication proceeding has been initiated in terms

of Memo No. 1489 dated 19th August, 2015 issued from the office of the

Appointing Authority in pursuance of order dated 22nd May, 2015, passed

by the Hon’ble Court in CWJC No. 7682 of 2015, taking into

consideration apart from others Clause 6 of the General Condition of

Contract (G.C.C.).

2. On receipt of the above order, immediately vide Order dated 24th

August, 2015 parties concerned were directed to be noticed to appear, file

pleadings and proceed for hearing but on 26th August, 2015 through Memo

No. 1536, corrigendum in earlier Office Order was received, substituting

the word “Adjudication” in place of “Arbitration” in para 2 of the original

order.

3. On the date fixed before filing pleadings on 9th of September,

2015 on the joint request made on behalf of the parties on record, claimant

no. 2 namely M/s Tantia Construction Ltd. was also ordered to be noticed

to the same effect.

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4. On 16th of September, 2015, pleadings on behalf of claimant no.

1 was filed and claimant no. 2 adopted the same asserting no separate

pleadings is required to be filed on his behalf.

5. On 5th of October, 2015, pleadings on behalf of the Employer

was filed but rejoinder to the same could be filed on behalf of claimant

only on 27th of October, 2015. Meanwhile vide order dated 9th of October,

2015 itself both the sites were directed to be specific on certain points in

writing with supporting materials. The employer was to be specific about

clearance/sanction from Indian Oil Corporation (IOC) as well as Indian

Railway with respect to different works. Besides to be further specific

about finality of the locations for construction, connecting routs and the

same being free from all encumbrances etc. Simultaneously, the claimants

were required to be specific about their intention to further carry over the

work, methodology and the maximum period to discharge their liabilities.

On behalf of Employer, reply was filed on 26th of October, 2015 but on

behalf of contractor, simultaneous with rejoinder on 27th October, 2015.

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6. The relevant undisputed facts in the instant matter is that, on

behalf of Employer for the project known as Ganga Water Supply Package

for BTPS Extension Project for Barauni Thermal Power Station, Phase – I

(2 x 110 MW) and Phase – II (2 x 250 MW) (Supply-cum-Erection at

Barauni, District Begusarai) at Barauni. Tenders were invited from the

competent companies qualifying the terms and conditions for the same as

enumerated in Clause 3 of Bid Data Sheet (BDS).

7. Claimant no. 1 appeared as bidder and claimant no. 2 associated

claimant no. 1 and then meeting the required qualification as enumerated

in Clause 3.1.2 stood qualified, and did the needfulls.

8. The Employer entered into agreement/contract with claimant no.

1 on 03.07.2012 and as per General Conditions of Contract (GCC), project

under Phase –I was to be completed by 3rd January, 2015 whereas of Phase

– II by 3rd July, 2014 itself, but at the same time in view of Clause 3.6

which reads as such:

“3.6 Construction of the Contract

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3.6.1 The Contracts to be entered into between the Employer and

the successful bidder shall be as under :

-- 'First Contract' for Ex-works supply of all the Plant and

Equipment including mandatory spares.

-- 'Second Contract' for providing all services i.e. loading, inland

transportation for delivery at site, inland transit insurance,

unloading, storage, handling at site, installation, insurance

covers other than inland transit insurance, testing and

commissioning including carrying out guarantee tests in

respect of all the Plant and Equipment supplied under the

'First Contract' and all other services specified in the

Contract Documents.

3.6.2 The award of separate Contracts shall not in any way dilute

the responsibility of the Contractor for the successful

completion of the Facilities as per Contract Documents and

a breach in one Contract shall automatically be construed as

a breach of the other Contract(s) which will confer a right on

the Employer to terminate the other Contract(s) also at the

risk and the cost of the Contractor.”

Thus, both the aforesaid contracts for the all practical purposes

may be treated as of one.

9. It is also not in dispute that the project could not be completed

within stipulated period and as per the Employer various request by way

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of reminder etc. to expedite and complete the project, nothing could be

done and under compelling circumstances, finding the negligence on the

part of the contractor/claimants, vide letter no. 278 dated 11th May, 2015.

The Employer issued a notice of termination to the contractor under

Clause 42.2 of the General Conditions of Contract (GCC).

10. On the other hand, as per the claimants, the delay in execution

of the project under contract was due to various latches on the part of the

Employer and making request by the claimants for extension of the period

as well as to refer the matter fixing the responsibilities behind such delay

to the Adjudicator were completely ignored and the contract was

terminated.

11. Whereon claimant no. 1 file CWJC No. 7682 of 2015 before the

Hon’ble High Court, Patna. By final order dated 22.05.2015 said

termination was quashed and set aside, consequently, the present

proceeding.

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12. Here it would not be out of place to mention which is also not in

dispute that while appointing the Adjudicator in terms of Clause 6.01.01

of General Conditions of Contract (GCC), which reads as such:

“If any dispute of any kind whatsoever shall arise between the

Employer and the Contractor in connection with or arising out

of the Contract, including without prejudice to the generality of

the foregoing, any question regarding its existence, validity or

termination, or the execution of the Facilities—whether during

the progress of the Facilities or after their completion and

whether before or after the termination, abandonment or breach

of the Contract—the parties shall seek to resolve any such

dispute or difference by mutual consultation. If the parties fail

to resolve such a dispute or difference by mutual consultation,

then the dispute shall be referred in writing by either party to

the Adjudicator, with a copy to the other party.”

That no attempt appears made by the parties to resolve the

disputes or differences by mutual consultation, consequently, neither any

home-work was done nor any details of dispute was communicated nor

any materials indicating claim/counter claim were served but period to

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conclude the proceeding within 28 days as provided in the Clause

06.01.02 of General Conditions of Contract (GCC) was referred, however,

immediately all concerned were ordered to be noticed and the proceeding

proceeded in the manner referred to above, meanwhile, the period to

conclude was also by mutual consent of the parties, extended till 10 th

November, 2015 but after completing the pleadings enclosed with the

documents, actual hearing could commence only on 2nd November, 2015.

13. On the basis of the materials available, including the

contents in Para-8 of claim applications as well as Para-50 of written

statement on behalf of the Employer coupled with the submissions made

the only points for adjudication is as:

“Whether the delay caused in due progress of the

projects under contract is due to any latches on the part of the

contractors or the employer or by both and the contract is

liable to be terminated? And whether the parties should

proceed with the project work to be completed within

reasonable extended period with consequential revised

facilities to be inter se decided/agreed upon taking into 8/61

consideration the related relevant conditions already

enumerated in General Conditions of Contract (GCC) ?”

14. Shri S.D. Sanjay, learned senior counsel on behalf of the both

claimants, vehemently submitted that the project under hand is not the

joint venture of the claimants, rather than claimant no. 2 M/s Tantia

Construction Ltd is simply associated with claimant no. 1 but in the view

of filing of required joint undertaking, it is equally responsible for the

latches, if any, committed by the Bidder (claimant no. 1) and at no point

of time claimant no. 2 deviated from its responsibility nor either of the

claimants are responsible for the delay caused in due progress rather from

the very beginning, there was non-cooperation from the Employer, place

for office etc. was also not provided at the earliest opportunity the

documents designs furnished on behalf of the claimants were also not

cleared by the Project Manager (N.T.P.C.) within stipulated period at

various stages. Locations have been changed, furthermore, the majority of

the sites were not free from encumbrances. The lands were neither

acquired nor due permission from the authorities concerned were taken in

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time. The claimants had to suffer much even on financial score, their bills

were also not cleared in time in spite of its due submission, alternative

methodology for Intake Well which was necessitated under compelling

circumstances (change of location etc.) which was placed in the meeting

and was being further proceeded. Considering all such aspect on behalf of

the claimants, request was made to extend the period to complete the

project etc. but without adhering to all such aspect, the Employer appears

terminating the contract under Clause 42.2 of G.C.C. Of course, the same

has been quashed but only after invoking the jurisdiction of the Hon’ble

High Court, Patna, by the contractor.

15. On the other hand, learned counsel Shree Rajeev Ranjan Prasad

representing Employer submits that right from beginning, the claimants

who are joint venture did not act as per terms of the contract. They were

not prompt to maintain time schedule, the documents were presented

much beyond time and that too vague. Several documents are set to be

presented by them under different categories, no work was done even

where there was no hurdle from any corner. They appears not keen in 10/61

completing the projects well within the schedule, furthermore, claimant

no. 2 appears left associating claimant no. 1 i.e. nothing but the breach of

contract which alone entitles the Employer to terminate the Contract but

the Employer shown much tolerance at each and every occasion intended

to and co-operated with the Bidder to complete the project and when all

remains ineffective, had no option left but to opine that the claimants are

not competent enough to proceed with and complete the project. Had they

been competent enough, they could have completed the projects at least to

the extent, it could have been without any required permission from other

authorities, and clearance of sites etc.

16. I have heard the learned counsels at length, perused the

pleadings submitted by the parties alongwith the documents including

general and special conditions of contract, bidding documents which

includes invitation for bids (IFB), instruction to bidders (ITB) etc.

17. Admittedly, McNally Bharat Engineering Co. Ltd. was the

bidder and stood qualified with association of M/s Tantia Constructions

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Ltd. for better appreciation. It is relevant to reproduce here the qualifying

requirements for bidders as contemplated under Clause 3 of Bid Data

Sheet (BDS) as well as Clause 6 of DIFB as follows:

“6.0 QUALIFYING REQUIREMENT FOR BIDDERS

In addition to the satisfactory fulfilment of the requirements

stipulated under Section ITB (Instruction to Bidders), the

following shall also apply:

6.1.0 The bidder who wishes to participate in the bidding shall

satisfactorily establish that he fulfills the qualifying

requirements stipulated here under as per Clause 6.1.1 or 6.1.2

as the case may be and as per Clause 6.2.0:

6.1.1 The Bidder should have executed the following works within the

preceeding seven

(7) years reckoned as on date of bid opening:

(i) (a) Civil & structural works of pump house, pump sumps

involving deep excavation, de-watering, concreting and

(b) Concreting of 13000 cum in any one (1) year in one (1)

or cumulative of two (2) concurrently running contracts.

(ii) At least one work of sinking of concrete well. The least

lateral dimension of the well should have been 7 m and the least

depth of sinking should have been 20 m below ground. The

ground level for the purpose of well sinking shall be bed level

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for river/water body and natural ground level for open land

areas.

6.1.2 Bidder who meets the qualifying requirement of only one of the

clause 6.1.1(i) or 6.1.1(ii) above, can also participate, provided

he associates with a firm who meets the requirements of clause

6.1.1 (ii) or 6.1.1(i) above as the case may be, such that the

bidder and his associate together fully meet the requirement of

clause 36.1.1 (i) and 6.1.1 (ii).

In such case, bidder shall furnish undertaking jointly executed

by him and his associate for the satisfactory performance of

civil works as per the format enclosed in the bid documents.

This joint deed of undertaking shall be submitted along with the

bid, failing which the bidder shall be disqualified and his bid

shall be rejected. In case of award, the associate will be required

to furnish an on demand bank guarantee of value for 2% (two

percent) of contract price of Ganga Water Supply Package in

addition to contract performance security to be furnished by

bidder. “

6.2.0 (a) to (g)..........

“6.3.0 Notwithstanding anything stated above, the Employer reserves

the right to assess the capabilities and capacity of the Bidder /

his collaborators /associates / subsidiaries / group companies to

perform the contract, should the circumstances warrant such

assessment in the overall interest of the Employer.”

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18. Admittedly, the bidder furnished joint undertakings as required

under Clause 6.1.2/3.1.2 of DIFB/BDS and contract agreement no. 3 and 4

were executed on 30th July, 2012 between the Employer and McNally

Bharat Engineering Co. Ltd. The contract price is Rs. 31,70,17,600/- and

Rs. 83,89,50,000/-, respectively besides such other sums as may be

determined in accordance with terms and conditions of the contract.

19. Entire submissions regarding whether ongoing project is under

joint venture or otherwise looses its force in view of Clause 3.4 of Bid

Data Sheet (BDS) which specifically states:

“Whether JVs are permitted : No”

Further in Clause 1.1 of the General Conditions of Contract

(GCC), the word “Contractor” has been defined as such:

““Contractor” means the person(s) whose bid to perform the

Contract has been accepted by the Employer and is named as

such in the Contract Agreement, and includes the legal

successors or permitted assigns of the Contractor.”

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20. And vide Clause 2 of Special Conditions of Contract, the words

“joint venture or consortium” in General Conditions of Contract (GCC),

Clause 3.10 stands deleted and said Clause 3.10 of General Conditions of

Contract (GCC) read as such:

“3.10 Joint Venture or Consortium

If the Contractor is a joint venture or consortium of two or more

firms, all such firms shall be jointly and severally bound to the

Employer for the fulfillment of the obligations under the

Contract and shall designate one of such firms to act as a leader

with authority to bind the joint venture or consortium. The

composition or the constitution of the joint venture or

consortium shall not be altered without the prior consent of the

Employer.”

21. There is no dispute towards the fact that the contractor and its

associate are bound by the joint undertakings submitted by them at the

time of bidding in terms of required qualifications for the bidders and they

are liable to face the consequences jointly or severely.

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22. Before further proceedings with other contentions so advanced

here, it would be relevant to examine the responsibilities of the contractors

and Employer which have been well defined respectively in Clause 9 and

10 of General Conditions of Contract (GCC) reproduced below:

“9. Contractor’s Responsibilities

9.1 The Contractor shall design, manufacture (including

associated purchases and/or subcontracting), install and

complete the Facilities and carry out the Guarantee tests

with due care and diligence in accordance with the

Contract.

9.2 The Contractor confirms that it has entered into this

Contract on the basis of a proper examination of the data

relating to the Facilities (including any data as to boring

tests) provided by the Employer, and on the basis of

information that the Contractor could have obtained from

a visual inspection of the Site (if access thereto was

available) and of other data readily available to it relating

to the Facilities as at the date twenty-eight (28) days prior

to bid submission. The Contractor acknowledges that any

failure to acquaint itself with all such data and

information shall not relieve its responsibility for properly

estimating the difficulty or cost of successfully

performing the Facilities.

9.3 The Contractor shall acquire in its name all permits,

approvals and/or licenses from all local, state or national

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government authorities or public service undertakings in

the country where the Site is located that are necessary for

the performance of the Contract, including, without

limitation, visas for the Contractor’s and Subcontractor’s

personnel and entry permits for all imported Contractor’s

Equipment. The Contractor shall also acquire all other

permits, approvals and/or licenses that are not the

responsibility of the Employer under GCC Sub-Clause

10.3 hereof and that are necessary for the performance of

the Contract.

9.4 The Contractor shall comply with all laws in force in India.

The laws will include all national, provincial, municipal

or other laws that affect the performance of the Contract

and bind upon the Contractor. The Contractor shall

indemnify and hold harmless the Employer from and

against any and all liabilities, damages, claims, fines,

penalties and expenses of whatever nature arising or

resulting from the violation of such laws by the

Contractor or its personnel, including the Subcontractors

and their personnel, but without prejudice to GCC Sub-

Clause 10.1 hereof.

9.5 Any Plant, Material and Services that will be incorporated

in or be required for the Facilities and other supplies shall

have their origin as specified under GCC. Clause 3.13

(Country of Origin).

10. Employer’s Responsibilities

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10.1 The Employer shall ensure the accuracy of all information

and/or data to be supplied by the Employer as described

in Appendix 6 (Scope of Works and Supply by the

Employer) to the Contract, except when otherwise

expressly stated in the Contract.

10.2 The Employer shall be responsible for acquiring and

providing legal and physical possession of the Site and

access thereto, and for providing possession of and access

to all other areas reasonably required for the proper

execution of the Contract, including all requisite rights of

way, as specified in Appendix 6 (Scope of Works and

Supply by the Employer) to the Contract Agreement. The

Employer shall give full possession of and accord all

rights of access thereto on or before the date(s) specified

in Appendix 6.

10.3 The Employer shall acquire and pay for all permits,

approvals and/or licenses from all local, state or national

government authorities or public service undertakings in

the country where the Site is located, which such

authorities or undertakings require the Employer to obtain

in the Employer’s name for the execution of the Contract

(they include those required for the performance by both

the Contractor and the Employer of their respective

obligations under the Contract), including those specified

in Appendix 6 (Scope of Works and Supply by the

Employer) to the Contract Agreement.

10.4 If requested by the Contractor, the Employer shall use its

best endeavors to assist the Contractor in obtaining in a

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timely and expeditious manner all permits, approvals

and/or licenses necessary for the execution of the Contract

from all local, state or national government authorities or

public service undertakings that such authorities or

undertakings require the Contractor or Subcontractors or

the personnel of the Contractor or Subcontractors, as the

case may be, to obtain.

10.5 Unless otherwise specified in the Contract or agreed upon

by the Employer and the Contractor, the Employer shall

provide sufficient, properly qualified operating and

maintenance personnel; shall supply and make available

all raw materials, utilities, lubricants, chemicals, catalysts,

other materials and facilities and shall perform work and

services of whatsoever nature, all as specified in

Appendix-6 (Scope of Works and Supply by the

Employer) to the Contract Agreement, to enable the

Contractor to properly carry out Precommissioning,

Commissioning and Guarantee Tests at or before the time

specified in the program furnished by the Contractor

under GCC Sub-Clause 18.2 (Program of Performance)

hereof and in the manner thereupon specified or as

otherwise agreed upon by the Employer and the

Contractor.

10.6 The Employer shall be responsible for the continued

operation of the Facilities after Completion, in accordance

with GCC Sub-Clause 24.9, and shall be responsible for

facilitating the Guarantee Test(s) for the Facilities, in

accordance with GCC Sub-Clause 25.1.

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10.7 All costs and expenses involved in the performance of the

obligations under this GCC Clause 10 shall be the

responsibility of the Employer, save those to be incurred

by the Contractor with respect to the performance of

Guarantee Tests, in accordance with GCC Sub-Clause

25.1.”

23. As stated earlier, owing to some sort of contentions in the

pleadings relating to sites being not free from encumbrances and finality

of locations, lack of sanction from competent authorities and also non-

adherence of the request made by the contractor regarding extension of

time etc., both the sides were directed to be specific on the points and as

per reply of the Employer due clearance from Railway is still awaited as

regard to construction of Desilting Chamber and Piping and Fitting

Electrical Works etc. still carry some hurdle. Steps were on to clear with

slight diversion of routes but owing to present disputes, matter is stand

still, whereas in construction of Intake Well clearance was received vide

letter no. 2482 dated 27.03.2014 but so far the work of P.T. Plant area

inside Boundary Wall of BTPS, everything is clear.

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24. On the other hand the contractor in his reply dated 27.10.2015

expressed his intention to complete remaining works of the project but on

fresh terms and conditions price, time schedule etc. and with regard to

Intake Well, intends to adopt Floating Caisson Methodology, at the same

time instead of being specific on the reply as regard to total time to be

consumed in Para 6, he has asserted 24 months for construction of Intake

Well only excluding monsoon period etc.

25. Undisputedly, the project has been delayed much and not only

in the pleadings but also during arguments by filing documents both the

sides have tried to shift the responsibilities upon other side, mainly on the

ground of non-observations of the responsibilities lying towards them as

per General Condition of Contract (G.C.C.).

26. It is also undisputed that as per Clause 18.2 of General

Condition of Contract (G.C.C.). The work schedule etc. had to be submitted

by the claimant to the Employer/ consultant within 28 days, but same has

been done roughly, after two months the contractor has tried to explain

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such delay, non-provision of space for site office etc. which is according

to him obligatory on the part of the Employer in view of exclusion Clause

2.04.06 of Terminal Point and Exclusion, on the other hand as per the

Employer, it was never obligatory on their part but as good gesture, they

used to provide spaces on rent etc. and it has been done vide order nos. 9

and 14 dated 13.2.2013 and 01.06.2013 but before such allotment of the

quarter etc. work programme in the form of P.E.R.T. Chart normally was

submitted on 17.09.2012, on the basis whereof it is also contended that

had non-availability of space, been genuine problem, it could not have

been submitted at the same time, this much is undisputed that the

contractor, having some other work allotted by BHEL at some distance,

has its own office there on the particular site, in that view of the matter,

irrespective, of the provision for space for site office etc. being obligatory

or non-obligatory but could be provided at belated stage, may be on rent

basis, such delay at initial stage in submission of the work schedule etc.

which has already been ignored and the project proceeded, cannot be now

a relevant factor.

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27. Much arguments have been advanced on behalf of both the sides

relating to time taken in submission of drawings/designs/documents etc.

for approval of both the sides have annexed the charts (the claimant by

way of Annexure 12 series and separately by the Employer during course

of arguments) showing submissions, comments, resubmission after return

approval, pendency etc. but there is nothing to deal each and every item

specifying the causes behind such shortcoming whereas there is specific

provision in General Condition of Clause (GCC) by way of Clause 20.3.5,

however, for proper appreciation entire Clause 20 related with the subject

matter needs to be reproduced hereunder:

“20 Design and Engineering

20.1 Specifications and Drawings

20.1.1 The Contractor shall execute the basic and detailed design and

the engineering work in compliance with the provisions of the

Contract, or where not so specified, in accordance with good

engineering practice.

The Contractor shall be responsible for any discrepancies,

errors or omissions in the specifications, drawings and other

technical documents that it has prepared, whether such 23/61

specifications, drawings and other documents have been

approved by the Project Manager or not, provided that such

discrepancies, errors or omissions are not because of

inaccurate information furnished in writing to the Contractor

by or on behalf of the Employer.

20.1.2 The Contractor shall be entitled to disclaim responsibility for

any design, data, drawing, specification or other document, or

any modification thereof provided or designated by or on

behalf of the Employer, by giving a notice of such disclaimer

to the Project Manager.

20.2 Codes and Standards

Wherever references are made in the Contract to codes and

standards in accordance with which the Contract shall be

executed, the edition or the revised version of such codes and

standards current at the date twenty-eight (28) days prior to

date of bid submission shall apply unless otherwise specified.

During Contract execution, any changes in such codes and

standards shall be applied after approval by the Employer and

shall be treated in accordance with GCC Clause 39 (Changes

Originating from Contractor).

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20.3 Approval/Review of Technical Documents by Project

Manager

20.3.1 The Contractor shall prepare (or cause its Subcontractors to

prepare) and furnish to the Project Manager the documents

listed in Appendix 7 (List of Documents for Approval or

Review) to the Contract Agreement for its approval or review

as specified and as in accordance with the requirements of

GCC Sub-Clause 18.2 (Program of Performance).

Any part of the Facilities covered by or related to the

documents to be approved by the Project Manager shall be

executed only after the Project Manager’s approval thereof.

GCC Sub-Clauses 20.3.2 through 20.3.7 shall apply to those

documents requiring the Project Manager’s approval, but not

to those furnished to the Project Manager for its review only.

20.3.2 Within twenty one (21) days after receipt by the Project

Manager of any document requiring the Project Manager’s

approval in accordance with GCC Sub-Clause 20.3.1, the

Project Manager shall either return one copy thereof to the

Contractor with its approval endorsed thereon or shall notify

the Contractor in writing of its disapproval thereof and the 25/61

reasons therefor and the modifications that the Project

Manager proposes.

20.3.3 The Project Manager shall not disapprove any document,

except on the grounds that the document does not comply

with some specified provision of the Contract or that it is

contrary to good engineering practice.

20.3.4 If the Project Manager disapproves the document, the

Contractor shall modify the document and resubmit it for the

Project Manager’s approval in accordance with GCC Sub-

Clause 20.3.2. If the Project Manager approves the document

subject to modification(s), the Contractor shall make the

required modification(s), and upon resubmission with the

required modifications the document shall be deemed to have

been approved.

The procedure for submission of the documents by the

Contractor and their approval by the Project Manager shall be

discussed and finalised with the Contractor.

20.3.5 If any dispute or difference occurs between the Employer and

the Contractor in connection with or arising out of the

disapproval by the Project Manager of any document and/or

any modification(s) thereto that cannot be settled between the

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parties within a reasonable period, then such dispute or

difference may be referred to an Adjudicator for

determination in accordance with GCC Sub-Clause 6.1

(Adjudicator) hereof. If such dispute or difference is referred

to an Adjudicator, the Project Manager shall give instructions

as to whether and if so, how, performance of the Contract is

to proceed. The Contractor shall proceed with the Contract in

accordance with the Project Manager’s instructions, provided

that if the Adjudicator upholds the Contractor’s view on the

dispute and if the Employer has not given notice under GCC

Sub-Clause 6.1.2 hereof, then the Contractor shall be

reimbursed by the Employer for any additional costs incurred

by reason of such instructions and shall be relieved of such

responsibility or liability in connection with the dispute and

the execution of the instructions as the Adjudicator shall

decide, and the Time for Completion shall be extended

accordingly.

20.3.6 The Project Manager’s approval, with or without modification

of the document furnished by the Contractor, shall not relieve

the Contractor of any responsibility or liability imposed upon

it by any provisions of the Contract except to the extent that

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any subsequent failure results from modifications required by

the Project Manager.

20.3.7 The Contractor shall not depart from any approved document

unless the Contractor has first submitted to the Project

Manager an amended document and obtained the Project

Manager’s approval thereof, pursuant to the provisions of this

GCC Sub-Clause 20.3.

If the Project Manager requests any change in any already

approved document and/or in any document based thereon,

the provisions of GCC Clause 39 (Change in the Facilities)

shall apply to such request.”

28. Had either of the side been able to observe the specific

provision relating to disputes on the point relating to submissions of

designs and approvals etc. at appropriate stage with specific and minute

details of the differences, it could have been resolved/adjourned upon in

related terms of the General Condition of Contract (GCC) but nothing

of the kind was done and at this stage also in absence of such

specifications, it is difficult to much embark upon this but it can

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definitely be said that both the sides never cared for redressal of such

issues which is one of the causes of delay in project in hand.

29. Undisputedly, errection of pipe lines have also not been

completed. Admittedly, it is to be done at substantial length and the

contractor asserts that no space for such was provided on one stretch

rather the rout agreed was not free from the encumbrances, lands were

to be acquired from private persons or whereunder encroachment by

some others and that apart no due permission was overtaken from the

competent authorities at appropriate stage as regard to pipe corridor

area relying on Clause 3.01.00 -IV of GTRS for civil works which reads

as such:

”Pipe corridor area for relying the pipe line may be made

available in segments and contractor is required to work at

many fronts at a time at locations for which necessary

approach roads from the nearest existing routs needs to be

constructed by the contractor for which no extra payment

shall be made by the Employer.”29/61

30. It is also contended on behalf of the claimants on basis of the

averments made in Para 22 of the rejoinder to the written statement

filed on behalf of the Employer relying on Annexure 16 series that after

start of work relating to pipe lines they had to change the routs roughly

after nine months at the instance of the Employer that period of nine

months besides the cost accrued were wasted.

31. But as regard to removal of encroachments or land

acquisitions etc. are concerned some work is yet to be completed on the

part of Employer and the rout is also to be diverted, for which proposal

are yet to be finally processed and approved as is evident from the

averments made by the Employer in response to the queries as stated

earlier.

32. With respect to work relating to P.T. Plant Area inside the

boundary wall of BTPS. It is stated in Para 9 -XIV of the written

statement of the Employer that the contractor could not complete the

works even within the Plant Area in available clear front, within the

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contract period but as per the contractor, the delay was caused due to

non approval of drawings and certificates changes in Finish Ground

Level (FGL) after 12 months i.e. dated 03.07.2012 initially the design

was approved but subsequently, it was changed in Technical Committee

Meeting (TCM) – VI, on 12.6.2013 much argument was advanced on

behalf of the Employer that earlier approved designs were on basis of

Finish Ground Level (FGL) 47.5 meters but submitted by the contractor

itself which was when found in consonance with the survey report

reduced to 45 meters but there is nothing on record to clarify how and

under what circumstances, earlier the drawings were approved on basis

of Finish Ground Level (FGL) 47.5 meters, if at all, it was erroneously

submitted by the contractor, and it has travelled from category- 3 to

category- 1 consuming time but all of a sudden change took place

causing further expenses and time to be taken in redesigning etc.,

further it is also not denied that there was strike etc. in the offices of

Employer on several occasions for which the contractor cannot be

blamed.

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33. Much arguments have been advanced with respect to

construction of Intake Well which according to both the sides is most

important work and since Tantia Constructions Ltd. having expertise for

such work associated with the contractor.

34. At the very initial stage as is admitted by of the parties that

some objections were raised by Inland Waterways Authority of India,

(IWAI) since no permission was obtained earlier, consequently, nothing

substantive could be done on this front, however, required permission

could be obtained only through letter no. 2482 dated 27th March, 2014

from Inland Waterways Authority of India, (IWAI), Patna. But it is the

height when in Para 21 of written statement, it is averted that earlier the

Employer was not aware of requirement of such permission, however,

for 21 odd months, no work on this front was possible.

35. It is undisputed that earlier this Intake Well was to be

constructed by Coffer Dam Methodology but subsequently, in view of

the permission obtained by Inland Waterways Authority of India

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(I.W.A.I.), its locations was changed and brought a bit nearer to the

bank of river Ganga, immediately on being aware of such change of

location, the contractor trough E-mail dated 21.03.2014 requested for

certain changes in methodology and engineering etc. as per new

location, the issue appears discussed in the meeting held on 11th April,

2014 at BTPS, Barauni amongst officers of B.S.P.G.C.L., B.T.P.S.,

N.T.P.C. and M.B.E.C.L. and it was observed that the same may be

modified on certain conditions, if accrues in the river bed at the time of

construction etc. and it was committed by the constructor to start the

construction of Island / Coffer Dam from last week of September, 2014

positively and at the same time McNally Bharat Engineering Co. Ltd.

was to submit revised designs/drawings of approach bridge protection

of river bank etc. at the earliest.

36. However, due to full flowing river, having water level 23

meter having velocity compelled the contractor finding itself unable to

construct Coffer Dam and also at the relevant time there was lack of

contractor having adequate experiences besides other available reasons 33/61

referring in letter no. MBE/BSEB/(W020)JR026 dated 19th September,

2014 requested the Employer for due changes in methodology which

according to the contractor was only solution to solve the problem.

37. On the same day the issue was discussed as is evident from

minutes (Annexure 4) in the meeting under the chairmanship of Chief

Secretary, Government of Bihar, and it was directed that McNally

Bharat Engineering Co. Ltd. to submit the detail report and proposal

regarding the same to M/s N.T.P.C., (Project Consultant), with

intimation to BSPGCL within the week, against which the comments

shall be given by the N.T.P.C. within ten days. Thereafter, future course

of action shall be decided in joint meeting between the representative of

MBECL, BSPGCL and N.T.P.C. Simultaneously McNally Bharat

Engineering Co. Ltd. was also to expedite the work at site, failing

which strict action may be taken against them.

38. The contractor immediately through E-mail on 22.12.2014

complied with the direction and submitted due engineering and

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methodology to be applied with such as construction of Intake Well by

Floating Caisson Methodology.

39. The issue was then discussed in the meeting held on 5 th

January, 2015 at N.T.P.C. E.O.C. Noida, wherein alongwith the

authorities of BSPGCL, N.T.P.C. and MBECL with Tantia’s consultant

was also present and vide resolution no. 3, it was reiterated that they

should go with the approved methodology as the change methodology

will result in delay in construction of Intake Well at this stage.

However, M/s McNally Bharat Engineering Co. Ltd. necessitated to go

for Caisson Sinking Method instead of completing through Coffer Dam

Methodology. In view of non-availability of experience, contractor for

construction of Coffer Dam in floating river water, M/s McNally Bharat

Engineering Co. Ltd. informed that Floating Caisson Methodology will

have advantages over Coffer Dam Methodology of such location and

the same shall be elaborated in the detailed change methodology, thus,

vide resolution nos. 4 and 5 respectively itself resolved.

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“4 – M/s MBE shall submit detailed changed methodology

considering the following aspects/limitation, which have not been

covered in the submitted brief changed methodology and after site

visit by M/s Tantia.

- Impact on Design 7 Construction of Intake Well.

- Risk analysis w.r.t. present proposal.

- Detailed Schedule of Various Activities involved.

- Experience of M/s Tantia for proposed Caission Sinking

Well.

- Overall Time Period vis-a-vis Requirement of Project.

- No Additional issues whatever shall be raised including

Land by M/s MBE for completion of Intake works.

- No Financial Implication will be admissible on account of

change in methodology including for the work carried out

so far.

- No Additional Approval/Permission will be required from

any Statutory

Authority including Inland Water Ways Authority.

- Contingency arrangement in case of any slippage in

schedule on any account to be provided by M/s MBE.

“5. - The revised proposal to be submitted by M/s McNally

Bharat Engineering Co. Ltd. and M/s Tantia Constructions

Ltd. by 14.01.2015. Further, the above proposal shall be

discussed/detailed presentation at Patna, Bihar State Power

Generation Company Ltd. office on 19.01.2015.”

Consequently, fresh proposal etc. was submitted and is still

under process. It is neither rejected nor accepted till date.36/61

40. On basis of averment made at Para 20 of written statement on

behalf of Employer, it is contended by learned counsel, Shri Rajeev

Ranjan Prasad that the contractor shown his bonafide and could have

been able to complete the work and at the place there was no hindrance

at all. The Employer would have certainly consider the delay, if any

accrued, due to non-availability of the land or any other things but in

this case the contractor was not able to take up the work of Intake Well

because of its associate’s alleged non-availability of experienced

contractor etc. to proceed with construction of Coffer Dam. There may

be the only conclusion that the associate has left the contractor, who

alone is not competent to discharge the obligations under the contract.

41. But in view of the steps taken by the contractor at the earliest

on being aware of change of location for construction of Intake Well,

requesting change of methodology, though the same was initially not

acceptable but finally contractor was asked to submit another proposal,

on basis of such proposed changes etc., it is now difficult to accept that

intention of the contractor was not good, if at all, the interpretation and 37/61

opinion of the Employer was against the moment, it is noticed by him

that the associate has left the contractor, all work could have

immediately been suspended in terms of Clause 41 of the General

Condition of Contract (GCC) which reads as such:

“41. Suspension

41.1 The Employer/ Project Manager may, by notice to the

Contractor, order the Contractor to suspend performance of

any or all of its obligations under the Contract. Such notice

shall specify the obligation of which performance is to be

suspended, the effective date of the suspension and the

reasons therefor. The Contractor shall thereupon suspend

performance of such obligation (except those obligations

necessary for the care or preservation of the Facilities) until

ordered in writing to resume such performance by the Project

Manager/ Employer.

If, by virtue of a suspension order given by the Project

Manager/Employer, other than by reason of the Contractor’s

default or breach of the Contract, the Contractor’s

performance of any of its obligations is suspended for an

aggregate period of more than ninety (90) days, then at any

time thereafter and provided that at that time such

performance is still suspended, the Contractor may give a

notice to the Project Manager requiring that the Employer

shall, within twenty-eight (28) days of receipt of the notice,

order the resumption of such performance or request and 38/61

subsequently order a change in the facilities in accordance

with GCC Clause 39 (Change in the Facilities), excluding the

performance of the suspended obligations from the Contract.

If the Employer fails to do so within such period, the Contractor

may, by a further notice to the Project Manager, elect to treat

the suspension, where it affects only a part of the Facilities, as

a deletion of such part of the facilities in accordance with

GCC Clause 39 (Change in the Facilities) or, where it affects

the whole of the Facilities, as termination of the Contract

under GCC Sub-Clause 42.1 (Termination for Employer’s

Convenience).

41.2 If

(a) the Employer has failed to pay the Contractor any sum due

under the Contract within the specified period, has failed to

approve any invoice or supporting documents without just

cause pursuant to Appendix 1 (Terms and Procedures of

Payment) to the Contract Agreement, or commits a

substantial breach of the Contract, the Contractor may give a

notice to the Employer that requires payment of such sum,

requires approval of such invoice or supporting documents, or

specifies the breach and requires the Employer to remedy the

same, as the case may be. If the Employer fails to pay such

sum, fails to approve such invoice or supporting documents

or give its reasons for withholding such approval, or fails to

remedy the breach or take steps to remedy the breach within

fourteen (14) days after receipt of the Contractor’s notice or

(b) the Contractor is unable to carry out any of its obligations

under the Contract for any reason attributable to the 39/61

Employer, including but not limited to the Employer’s failure

to provide possession of or access to the Site or other areas in

accordance with GCC Sub-Clause 10.2, or failure to obtain

any governmental permit necessary for the execution and/or

completion of the Facilities; then the Contractor may by

fourteen (14) days’ notice to the Employer suspend

performance of all or any of its obligations under the

Contract, or reduce the rate of progress.

41.3 If the Contractor’s performance of its obligations is

suspended or the rate of progress is reduced pursuant to this

GCC Clause 41, then the Time for Completion shall be

extended in accordance with GCC Sub-Clause 40.1, and any

and all additional costs or expenses incurred by the

Contractor as a result of such suspension or reduction shall be

paid by the Employer to the Contractor in addition to the

Contract Price, except in the case of suspension order or

reduction in the rate of progress by reason of the Contractor’s

default or breach of the Contract.

41.4 During the period of suspension, the Contractor shall not

remove from the Site any Plant and Equipment, any part of

the Facilities or any Contractor’s Equipment, without the

prior written consent of the Employer.”

And subsequently, on final adverse conclusion about conduct and

intention of the contractor, the contract could have been terminated, taking into

consideration Clause 42 of General Condition of Contract which for better

appreciation reads as such:40/61

“42. Termination

42.1 Termination for Employer’s Convenience

42.1.1 The Employer may at any time terminate the Contract for

any reason by giving the Contractor a notice of termination

that refers to this GCC Sub- Clause 42.1.

42.1.2 Upon receipt of the notice of termination under GCC Sub-

Clause 42.1.1, the Contractor shall either immediately or

upon the date specified in the notice of termination:

(a) cease all further work, except for such work as the

Employer may specify in the notice of termination

for the sole purpose of protecting that part of the

Facilities already executed, or any work required to

leave the Site in a clean and safe condition

(b) terminate all subcontracts, except those to be

assigned to the Employer pursuant to paragraph (d)

(ii) below

(c) remove all Contractor’s Equipment from the Site,

repatriate the Contractor’s and its Subcontractors’

personnel from the Site, remove from the Site any

wreckage, rubbish and debris of any kind, and leave

the whole of the Site in a clean and safe condition

(d) In addition, the Contractor, subject to the payment

specified in GCC Sub-Clause 42.1.3, shall

(i) deliver to the Employer the parts of the

Facilities executed by the Contractor up to the

date of termination

(ii) to the extent legally possible, assign to the

Employer all right, title and benefit of the

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Contractor to the Facilities and to the Plant and

Equipment as at the date of termination, and, as

may be required by the Employer, in any

subcontracts concluded between the Contractor

and its Subcontractors

(iii) deliver to the Employer all non-proprietary

drawings, specifications and other documents

prepared by the Contractor or its Subcontractors

as at the date of termination in connection with

the Facilities.

42.1.3 In the event of termination of the Contract under GCC Sub-

Clause 42.1.1, the Employer shall pay to the Contractor the

following amounts:

(a) the Contract Price, properly attributable to the parts

of the Facilities executed by the Contractor as of the

date of termination

(b) the costs reasonably incurred by the Contractor in

the removal of the Contractor’s Equipment from the

Site and in the repatriation of the Contractor’s and its

Subcontractors’ personnel

(c) any amounts to be paid by the Contractor to its

Subcontractors in connection with the termination of

any subcontracts, including any cancellation charges

(d) costs incurred by the Contractor in protecting the

Facilities and leaving the Site in a clean and safe

condition pursuant to paragraph (a) of GCC Sub-

Clause 42.1.2

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(e) the cost of satisfying all other obligations,

commitments and claims that the Contractor may in

good faith have undertaken with third parties in

connection with the Contract and that are not

covered by paragraphs (a) through (d) above.

42.2 Termination for Contractor’s Default

42.2.1 The Employer, without prejudice to any other rights or

remedies it may possess, may terminate the Contract

forthwith in the following circumstances by giving a notice

of termination and its reasons therefor to the Contractor,

referring to this GCC Sub-Clause 42.2:

(a) if the Contractor becomes bankrupt or insolvent, has

a receiving order issued against it, compounds with

its creditors, or, if the Contractor is a corporation, a

resolution is passed or order is made for its winding

up (other than a voluntary liquidation for the

purposes of amalgamation or reconstruction), a

receiver is appointed over any part of its undertaking

or assets, or if the Contractor takes or suffers any

other analogous action in consequence of debt

(b) if the Contractor assigns or transfers the Contract or

any right or interest therein in violation of the

provision of GCC Clause 43 (Assignment).

(c) if the Contractor, in the judgement of the Employer

has engaged in corrupt or fraudulent practices in

competing for or in executing the Contract.

For the purpose of this Sub-Clause :

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"corrupt practice" means the offering, giving, receiving or soliciting

of any thing of value to influence the action of a public official in

the procurement process or in contract execution.

"fraudulent practice" means a misrepresentation of facts in order to

influence a procurement process or the execution of a contract to the

detriment of the Employer and includes collusive practice among

Bidders (prior to or after bid submission) designed to establish bid

prices at artificial non-competitive levels and to deprive the

Employer of the benefits of free and open competition.

42.2.2 If the Contractor

(a) has abandoned or repudiated the Contract

(b) has without valid reason failed to commence work on the

Facilities promptly or has suspended (other than pursuant

to GCC Sub-Clause 41.2) the progress of Contract

performance for more than twenty-eight (28) days after

receiving a written instruction from the Employer to

proceed

(c) persistently fails to execute the Contract in accordance

with the Contract or persistently neglects to carry out its

obligations under the Contract without just cause

(d) refuses or is unable to provide sufficient materials,

services or labor to execute and complete the Facilities in

the manner specified in the program furnished under GCC

Clause 18 (Program of Performance) at rates of progress

that give reasonable assurance to the Employer that the

Contractor can attain Completion of the Facilities by the

Time for Completion as extended then the Employer may,

without prejudice to any other rights it may possess under

44/61

the Contract, give a notice to the Contractor stating the

nature of the default and requiring the Contractor to

remedy the same. If the Contractor fails to remedy or to

take steps to remedy the same within fourteen (14) days

of its receipt of such notice, then the Employer may

terminate the Contract forthwith by giving a notice of

termination to the Contractor that refers to this GCC Sub-

Clause 42.2.

42.2.3 Upon receipt of the notice of termination under GCC Sub-

Clauses 42.2.1 or 42.2.2, the Contractor shall, either

immediately or upon such date as is specified in the notice

of termination,

(a) cease all further work, except for such work as

the Employer may specify in the notice of

termination for the sole purpose of protecting

that part of the Facilities already executed, or any

work required to leave the Site in a clean and

safe condition

(b) terminate all subcontracts, except those to be

assigned to the Employer pursuant to paragraph

(d) below

(c) deliver to the Employer the parts of the Facilities

executed by the Contractor up to the date of

termination

(d) to the extent legally possible, assign to the

Employer all right, title and benefit of the

Contractor to the Works and to the Plant and

Equipment as at the date of termination, and, as

45/61

may be required by the Employer, in any

subcontracts concluded between the Contractor

and its Subcontractors

(e) deliver to the Employer all drawings,

specifications and other documents prepared by

the Contractor or its Subcontractors as at the date

of termination in connection with the Facilities.

42.2.4 The Employer may expel the Contractor, and complete the

Facilities itself or by employing any third party. The

Employer may, to the exclusion of any right of the

Contractor over the same, take over and use with the

payment of a fair rental rate to the Contractor, with all the

maintenance costs to the account of the Employer and with

an indemnification by the Employer for all liability

including damage or injury to persons arising out of the

Employer’s use of such equipment, any Contractor’s

Equipment owned by the Contractor and on the Site in

connection with the Facilities for such reasonable period as

the Employer considers expedient for the supply and

installation of the Facilities. Upon completion of the

Facilities or at such earlier date as the Employer thinks

appropriate, the Employer shall give notice to the

Contractor that such Contractor’s Equipment will be

returned to the Contractor at or near the Site and shall

return such Contractor’s Equipment to the Contractor in

accordance with such notice. The Contractor shall

thereafter without delay and at its cost remove or arrange

removal of the same from the Site.

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42.2.5 Subject to GCC Sub-Clause 42.2.6, the Contractor shall be

entitled to be paid the Contract Price attributable to the

Facilities executed as at the date of termination, the value

of any unused or partially used Plant and Equipment on the

Site, and the costs, if any, incurred in protecting the

Facilities and in leaving the Site in a clean and safe

condition pursuant to paragraph (a) of GCC Sub-Clause

42.2.3. Any sums due to the Employer from the Contractor

accruing prior to the date of termination shall be deducted

from the amount to be paid to the Contractor under this

Contract.

42.2.6 If the Employer completes the Facilities, the cost of

completing the Facilities, including procurement of balance

plant & equipment by the Employer shall be determined.

If the sum that the Contractor is entitled to be paid, pursuant

to GCC Sub- Clause 42.2.5, plus the reasonable costs

incurred by the Employer in completing the Facilities,

exceeds the Contract Price, the Contractor shall be liable

for such excess.

If such excess is greater than the sums due to the Contractor

under GCC Sub-Clause 42.2.5, the Contractor shall pay the

balance to the Employer, and if such excess is less than the

sums due to the Contractor under GCC Sub- Clause 42.2.5,

the Employer shall pay the balance to the Contractor.

The Employer and the Contractor shall agree, in writing, on

the computation described above and the manner in which

any sums shall be paid.

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42.3 Termination by Contractor

42.3.1 If

(a) the Employer has failed to pay the Contractor any sum

due under the Contract within the specified period, has

failed to approve any invoice or supporting documents

without just cause pursuant to Appendix 1 (Terms and

Procedures of Payment) of the Contract Agreement, or

commits a substantial breach of the Contract, the

Contractor may give a notice to the Employer that requires

payment of such sum, requires approval of such invoice or

supporting documents, or specifies the breach and requires

the Employer to remedy the same, as the case may be. If

the Employer fails to pay such sum, fails to approve such

invoice or supporting documents or give its reasons for

withholding such approval, fails to remedy the breach or

take steps to remedy the breach within fourteen (14) days

after receipt of the Contractor’s notice,

or

(b) the Contractor is unable to carry out any of its

obligations under the Contract for any reason attributable

to the Employer, including but not limited to the

Employer’s failure to provide possession of or access to the

Site or other areas or failure to obtain any governmental

permit necessary for the execution and/or completion of the

Facilities which the Employer is required to obtain as per

provision of the Contract or as per relevant applicable laws

48/61

of the country, then the Contractor may give a notice to the

Employer thereof, and if the Employer has failed to pay the

outstanding sum, to approve the invoice or supporting

documents, to give its reasons for withholding such

approval, or to remedy the breach within twenty-eight (28)

days of such notice, or if the Contractor is still unable to

carry out any of its obligations under the Contract for any

reason attributable to the Employer within twenty eight

(28) days of the said notice, the Contractor may by a

further notice to the Employer referring to this GCC Sub-

Clause 42.3.1, forthwith terminate the Contract.

42.3.2 The Contractor may terminate the Contract forthwith

by giving a notice to the Employer to that effect, referring

to this GCC Sub-Clause 42.3.2, if the Employer becomes

bankrupt or insolvent, has a receiving order issued against

it,compounds with its creditors, or, being a corporation, if a

resolution is passed or order is made for its winding up

(other than a voluntary liquidation for the purposes of

amalgamation or reconstruction), a receiver is appointed

over any part of its undertaking or assets, or if the

Employer takes or suffers any other analogous action in

consequence of debt.

42.3.3 If the Contract is terminated under GCC Sub-Clauses

42.3.1 or 42.3.2, then the Contractor shall immediately

(a) cease all further work, except for such work as

may be necessary for the purpose of protecting that

49/61

part of the Facilities already executed, or any work

required to leave the Site in a clean and safe

condition

(b) terminate all subcontracts, except those to be

assigned to the Employer pursuant to paragraph (d)

(ii)

(c) remove all Contractor’s Equipment from the Site

and repatriate the Contractor’s and its

Subcontractor’s personnel from the Site

(d) In addition, the Contractor, subject to the payment

specified in GCC Sub-Clause 42.3.4, shall

(i) deliver to the Employer the parts of the

Facilities executed by the Contractor up to the

date of termination

(ii) to the extent legally possible, assign to the

Employer all right, title and benefit of the

Contractor to the Facilities and to the Plant and

Equipment as of the date of termination, and, as

may be required by the Employer, in any

subcontracts concluded between the Contractor

and its Subcontractors

(iii) deliver to the Employer all drawings,

specifications and other documents prepared by

the Contractor or its Subcontractors as of the

50/61

date of termination in connection with the

Facilities.

42.3.4 If the Contract is terminated under GCC Sub-Clauses

42.3.1 or 42.3.2, the Employer shall pay to the Contractor

all payments specified in GCC Sub- Clause 42.1.3, and

reasonable compensation for all loss or damage sustained

by the Contractor arising out of, in connection with or in

consequence of such termination.

42.3.5 Termination by the Contractor pursuant to this GCC Sub-

Clause 42.3 is without prejudice to any other rights or

remedies of the Contractor that may be exercised in lieu of

or in addition to rights conferred by GCC Sub-Clause 42.3.

42.4 In this GCC Clause 42, the expression “Facilities executed”

shall include all work executed, Installation Services

provided, anÿ or all Plant and Equipment acquired (or

subject to a legally binding obligation to purchase) by the

Contractor and used or intended to be used for the purpose

of the Facilities, up to and including the date of

termination.

42.5 In this GCC Clause 42, in calculating any monies due from

the Employer to the Contractor, account shall be taken of

any sum previously paid by the Employer to the Contractor

under the Contract, including any advance payment paid

pursuant to Appendix 1 (Terms and Procedures of

Payment) to the Contract Agreement.”

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42. But nothing of the kind was done rather the required proposal

submitted by the contractor is yet pending disposal. It is undisputed that

referring the exigencies due to changes taking place increase of cost, pending

bills etc. including possibility of more time to be taken to complete the project,

the contractor has requested the Employer by writing a few letters Annexure 6

series, 21, 23, 24 series etc. seeking release of payment, extension of time and

facilities etc. in terms of Clause 40 of General Condition of Contract (GCC)

which reads as such:

“40. Extension of Time for Completion

40.1 The Time(s) for Completion specified in the SCC shall be

extended, if the Contractor is delayed or impeded in the

performance of any of its obligations under the Contract by

reason of any of the following:

(a) any Change in the Facilities as provided in GCC Clause 39

(Change inthe Facilities)

(b) any occurrence of Force Majeure as provided in GCC

Clause 37 (Force Majeure), unforeseen conditions as

provided in GCC Clause 35 (Unforeseen Conditions), or

other occurrence of any of the matters specified or referred

to in paragraphs (a), (b) and (c) of GCC Sub-Clause 32.2

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(c) any suspension order given by the Employer under GCC

Clause 41 (Suspension) hereof or reduction in the rate of

progress pursuant to GCC Sub-Clause 41.2 or

(d) any changes in laws and regulations as provided in GCC

Clause 36 (Change in Laws and Regulations) or

(e) any default or breach of the Contract by the Employer,

specifically including failure to supply the items listed in

Appendix 6 (Scope of Works and Supply by the Employer)

to the Contract Agreement, or any activity, act or omission

of any other contractors employed by the Employer or

(f) any other matter specifically mentioned in the Contract;

by such period as shall be fair and reasonable in all the

circumstances and as shall fairly reflect the delay or

impediment sustained by the Contractor.

40.2 Except where otherwise specifically provided in the Contract,

the Contractor shall submit to the Project Manager a notice of

a claim for an extension of the Time for Completion, together

with particulars of the event or circumstance justifying such

extension as soon as reasonably practicable after the

commencement of such event or circumstance. As soon as

reasonably practicable after receipt of such notice and

supporting particulars of the claim, the Employer and the

Contractor shall agree upon the period of such extension. In

the event that the Contractor does not accept the Employer’s

estimate of a fair and reasonable time extension, the Contractor

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shall be entitled to refer the matter to the Adjudicator, pursuant

to GCC Sub-Clause 6.1 (Adjudicator).

40.3 The Contractor shall at all times use its reasonable efforts to

minimize any delay in the performance of its obligations under

the Contract.

40.4 Documents for consideration of Time Extension The following

documents shall form the principal basis for consideration of

Time Extension pursuant to GCC clause 40 with or without

levy of liquidated damages pursuant to GCC Clause 26 and

settlement of extra claims during the execution of contract:

1. The joint recordings in the weekly meetings register.

2. Records of Technical Coordination Meetings.

3. Records of Conract Review Meetings.

4. Written notices issued by the "Project Manager" or his

authorised representative to Contractor in the relevant period.

But unfortunately, majority of such requests are still pending

with the Employer who even while issuing notice to terminate the contract

failed to appreciate.

43. In order to further substantiate the submissions on behalf of the

Employer, Annexure X the copy of experience certificate of Tantia

Constructions Ltd. issued by East Central Railway on 27.07.2010 alongwith

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drawing for Intake Well for tender purpose in connection with present project

as well as construction methodology has been filed and it is submitted that the

Tantia Constructions Ltd. has shown completion of work by Coffer Dam

Methodology under more difficult situation than that of the situation shown in

the letter filed by the contractor on 19th September, 2014, when the water level

at the site was about 23 meters and they had no experienced contractor to

install Geo Bag etc. and construction of the Coffer Dam in this situation,

according to learned counsel representing Employer, the expertise of Tantia

Constructions Ltd. also comes under doubt.

44. On the other hand, it is contended by Shri S.D. Sanjay that whatever

experience certificate of Tantia Constructions Ltd. is filed and required in the

present project is for the purpose of installation of Sinking Well /Intake Well

but related civil work is to be completed by the bidder i.e. McNally Bharat

Engineering Co. Ltd. and at the relevant time owing to the current under water

level, it was not possible for the available petty contractor involved in civil

work to complete the job and it was considered proper owing to the overall

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situation at the site at relevant time to change the methodology from Coffer

Dam system to Caisson Methodology.

45. On going through the papers Notes no. 5 on the design submitted at the

time of tender for Intake Well which reads as such:

“All equipments like valves, fittings instruments shown in the

drawing are indicative and bidders shall provide the equipment as

per system requirement and civil work for the same all be

included by the bidders”

46. It appears that civil work was to be completed by the bidder and as per

discussion made earlier in terms of General Condition of Contract, the bidder is

none other than McNally Bharat Engineering Co. Ltd. i.e. the contractor.

47. The papers relating to the methodology also indicates that only after

proper construction of Island i.e. Coffer Dam for which separate drawing was

filed, as is evident from Clause 5.1 of the methodology submitted (but the same

is neither available with Annexure X nor any explanation offered) Sinking Well

can be installed. Thus, again the submissions made by Shree Rajeev Ranjan

Prasad cannot be accepted.

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48. Much arguments has also been advanced that Tantia Constructions Ltd.

in spite of appearance in the present proceeding, after notice, did not file any

pleadings nor denied the allegations levelled against it, in writing, relating to its

not properly discharging the obligation towards construction of Intake Well and

doubt raised against the experience certificate etc. but those submission also

appears not tenable since M/s Tantia Constructions Ltd. is neither bidder nor

contractor as defined in General Condition of Contract, rather simple associate

of bidder /contractor and even contract was entered into only between the

Employer i.e. BSPGCL and McNally Bharat Engineering Co. Ltd. but at the

same time by filing of joint undertaking as required to fulfil qualifying

requirement for the bidder, referred earlier the said associate is bound by the

terms and conditions made therein and is liable jointly or severely in the event

of any default or latches on the part of the contractor. Apart from this though as

per the terms and conditions enumerated in General Conditions of Contract

(made available subsequently), there appears no need even to notice the

associate in the present proceeding but the same was done on oral submission

made by the parties on record. However, the associate appeared through the

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same set of lawyers as of McNally Bharat Engineering Co. Ltd. and since is

now well aware of entire proceedings also again makes him liable for the

consequence the contractor is to bear.

49. Before concluding, it is again relevant to mention that though the

contract was awarded in the month of July, 2012 but neither all sites were clear

nor due required permissions were obtained by the Employer from competent

authorities nor the lands were either acquired or encroachments were removed,

rather such due process at the end of the Employer, is still going on, as is

admitted position evident apart from other the reply given by the Employer of

the queries made during present proceeding. In that view of the matter in spite

of making every efforts and completing the remaining part of the project by the

contractor it cannot be said till date is complete project. Undisputedly, the

project carries huge public money and as repeatedly submitted by learned

counsel, Shree Rajeev Ranjan Prasad, more than 23 crores rupees have already

been paid to the contractor, on the other hand as contended by leaned counsel,

Shree S.D. Sanjay, substantial amount is still due to the Employer against the

work already done that goes to show that in spite of laps of more than three

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years time and substantial investment of public money the project is yet to be

completed. At the same time, the contractor also cannot be relieved from

owing the responsibility of the delay caused. The contractor, ought to have

proceeded to complete his job with substantial speed but as discussed above

there was delay in presentation of work schedule submissions of designs and

connected documents etc. and even completing the work wherever there was no

obstruction and lastly asking for change of methodology in installation of

Intake Well etc.

50. It is also noticed that none of the side was keen even to observe the terms

and conditions enumerated in General Conditions of Contract. Had they been

prompt and acted upon accordingly with due care and caution present stage

could have been avoided.

51. However, since the contractor even before present proceeding has

requested the Employer for extension of period etc. to complete the project and

also during proceeding has opted, to do so, of course, at every such occasion he

has inserted some conditions. The requests made by the contractor are yet not

disposed off, specifically and even after disposal of writ petition in the month

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of May 2015, the contractor sought permission from the Employer to remove

the machinery and other articles which are still undisputedly available at the

site at this juncture it can also be said that since order of termination of the

contract by the Employer was quashed by the Hon’ble Court. The parties were

not prevented from requesting eachother to mutually settle the dispute, proceed

with and complete the project. Had they been opted so, wastage of further time

could have also been avoided.

52. Now from the discussions made above it is crystal clear that progress of

the due project is hampered due to the negligence and latches committed on

part of both the sides i.e. Employer and contractor but at this stage the contract

is not liable to be terminated blaming each other in view of the involvement of

huge money, possibility of completion of the remaining part of the project on

modifying time and price etc. by mutual consent at the earliest, if all concerned,

co-operating each other proceed with on war footing, discharging their

responsibilities as enumerated in General Conditions of Contract without

wasting time any more. Accordingly the issue involved is replied.

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53. It is, therefore, directed that both the sides will make aware of, the either

side about their intention positively by the end of this month either to move

against the decision following the relevant Clause of General Condition of

Contract or to proceed with the project.

54. In the event they intend to complete the project, they are required to

immediately assess the remaining part of the project separately or jointly,

remove hurdles in the way and simultaneously modify the period to complete

the project including contract price etc. by mutual consent taking into

consideration relevant provisions of General Conditions of Contract without

wasting any time and proceed with the project and complete the same well

within agreed period. The contractor is also directed to ensure participation of

its associate i.e. Tantia Constructions Ltd. in the meeting organises in

connection with construction of Intake Well as well as wherever it is required.

(Akhilesh Chandra, J.)Adjudicator

Typed by Adnan Alam, Steno. Former Judge, Patna High Court, Patna Dated 10.11.2015

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