Before ,

The Ld. Sole Arbitrator Tribunal of Mr.

Justice V. K Mathur (Retd. Judge ),
former judge of High Court of
Allahabad, Lucknow.

In the Matter of:

Arbitration & Conciliation Act, 1996 & Act

2015 (Amended)
- And -
In the Matter of:
Disputes arising out of and/or in relation to
Earthwork in formation , Construction of
Bridges, Permanent Way works and other
Miscellaneous works in connection with
Agumentation of Rail Infrastructure
Facilities for Hauduaganj Thermal Power
Station at Kasimpur , District : Aligarh , U.P.

- Between -

M/s Modi Projects Limited,

248, Kanke Road, Ranchi,
Jharkhand-834 008,
(hereinafter referred to as the Claimant)
( represented by Pradip Modi, Director, aged
62, son of Late Sita Ram Modi, residing at
9/1 Basant Vihar, Kanke Road , Ranchi –
1
834008, P.O Ranchi University, PS Gonda,
Dist . Ranchi )
… Claimant

- Versus -

1. M/s Uttar Pradesh Rajya Vidyut

Utpadan Nigam Ltd. ( UPRVUNL)
(Acting through)

2. The Chairman cum Managing Director,

UPRVUNL. Lucknow.

3. The Chief Engineer , Civil, PPMM,

UPRVUNL, Lucknow.

4. The Superintending Engineer,

UPRVUNL, Harduaganj, Aligarh.

5. The Executive Engineer, UPRVUNL,

Harduaganj, Aligarh.

6. M/s RITES Ltd., Sitapur Road,

Lucknow- 227208.

… Respondents

2
3
 A. THE HUMBLE STATEMENT OF CLAIMS ON BEHALF
OF THE CLAIMANT

1.That the Claimant M/s. Modi Projects Limited, is a company

registered under Indian Companies Act 1956 having its
registered office at 2nd Floor, Shivani Apartment, 23-
Lansdown Terrace, Kolkata – 700026 and carrying out
diverse nature of construction business also from its
corporate office located at 248, Kanke Road, Ranchi,
Jharkhand, Pin-834 008 , P.S Gonda.

2.That the Respondent is M/s Uttar Pradesh Rajya Vidyut Utpadan

Nigam Ltd. ( UPRVUNL), ( UP Govt. Undertaking), 7 th floor,
Shakti Bhawan Extn., 14, Ashoka Marg, Lucknow- 226 001,
represented by its various officers.

3.That in response to tender No. IFB No. 10/H/09-10 invited

by the Chief Engineer, civil, UPRVUNL ( Respondent No. 2)
for the work of Earthwork in formation , Construction of
Bridges, Permanent Way works and other Miscellaneous
works in connection with Agumentation of Rail Infrastructure
Facilities for Hauduaganj Thermal Power Station at Kasimpur
, District : Aligarh , U.P, the Claimant submitted its tender
( two packet system) on 04.10.2013, ( the date of opening
of the tender) , with all necessary / required documents and
requisite earnest money.

4. That the price bid was opened after the technical scrutiny of
the documents submitted by the tenderers.

4
5. That the claimant being the lowest bidder was thereafter
awarded the works. The Letter of Acceptance ( LOA )
confirming the award of work to the Claimant was issued by
the Chief Engineer ( Civil )/ UPRVUNL, Lucknow, Vide letter
No.552/PPMM/CE(C)/HGJ/Rail/Civil Works dated
15.05.2010. for a total cost of Rs. 18,68,13,056.18.
( Rupees eighteen crore sixty eight lakh thirteen thousand
fiftysix and paise eighteen only.)
Photocopy of the LOA dated
15.05.2010 is submitted as
Exhibit C/1, pg 1-18 of Vol. CD-II
of this SOC.

6. It was a term of the letter of award that work was to be

completed in all respect within eight months reckoned from
15 days after the date of issue of the LOA. i.e the date of
completion was therefore 14.01.2011.

7. The LOA mentioned that the Superintending Engineer ,

Electricity Civil Construction Circle , 2x250 MW Ext. Project
Harduaganj, Kasimpur , Aligarh was the nominated Engineer
of the instant contract for execution of the works, and that
the letter of acceptance shall constitute a binding contract
between the parties pending execution of the formal
Agreement.

8. That as per directions in the LOA the claimant submitted B.G

no.32/2010 for Rs. 93,40,700/-, issued by Canara Bank ,

5
 Main Road, Ranchi-834001, Jharkhand towards Performance
Bank Guarantee ( PBG ).
9. That an agreement, vide No. 9/PPMM/CE( C)/HGJ/Rail/Civil
Works dated 11/02/14 was executed between the
Claimant and the Respondent embodying and /or specifying
all Terms & Conditions of the contract for the instant work.
Photocopy of the agreement is
submitted as Exhibit C/ , pg 1-
255 of Vol. CD-III of this SOC.

10. That the original copy of the agreement is in exclusive

custody of the Respondents who may be directed to file a
copy of the same before the Arbitration Tribunal.

11. That the above said agreement also contained the following:
i). Section No. 3 - Special Conditions/ Specifications. – pg
89 to 96 of Vol. CD-III of the SOC.
ii). Section No. 4. - Schedules A to F. - pg 97 to 103 of Vol.
CD-III of the SOC.
iii). Section No. 7. – Conditions of Contract. - pg 133 to 137
of Vol. CD-III of the SOC.
iv). Section No. 8. – Clauses of Contract - pg 138 to 203 of
Vol. CD-III of the SOC.

12. That the performance of the instant Contract in time was

solely and mainly dependent on fulfillment of all the
reciprocal obligations by the respondent in time and/or in
the manner expressly or impliedly embodied in terms of the
agreement. The successful performance of the Claimant
within object set by the Agreement for completing the work

6
 within specified time was dependent on the timely fulfillment
of reciprocal obligations by the respondent.

13. That the contract so entered between the claimant and the
respondent was a reciprocal contract wherein both the
parties were required to fulfill their part of the obligations.

14. That M/s RITES Ltd. were agency for the Project Management
and Consultant Engineer for the instant project and in terms
of Clause 25 (8) of GCC a necessary party, as said is now
being arrayed as a respondent party.

15. In the above said context the Claimant states that for
completion of the works under the agreement within
stipulated date , the primary obligations of the Respondent
were :
i). Handing over of clear, hassle free total work site with
unhindered access, immediately after issue of LOA.

ii). Issue of all approved drawings and providing decisions

within reasonable time, so as to enable the Claimant to
complete the work within the stipulated time.
iii). Handing over all P Way materials , rails, sleepers as
required and as per terms of the contract.
iv). Approval of necessary variations, extra item of works,
and or fixation of rates for non schedule new items of
works within reasonable time.
v). Release of due payments for work executed under the
agreement in time to enable the claimant to maintain
the requisite progress of execution of works.

7
 That fulfillment of above said obligations by the respondent
was condition precedent to the performance of the claimant.
Without fulfillment of the aforesaid obligations by the
respondent in time and in manner necessary for
performance of the claimant in terms of conditions of the
contract, it was not possible for the claimant to achieve the
target of completion of the work within stipulated date of
14.01.2011. In other words, completion of work within the
stipulated period of time of eight months by the Claimant
was mainly dependent on prior fulfillment of all the
obligations / reciprocal promises by the respondent in terms
of the contract within reasonable time .
16. That in the instant case the respondent miserably failed to
fulfill its condition precedent obligations in time and in
manner necessary for performance by the claimant within
the original stipulated time, and which resulted in
prolongation of performance period beyond the original
contemplation.
17. That in view of the obstructions and hindrances encountered
by the claimant due to reasons attributable to the
respondents, the performance progress as desired and
stipulated was not possible and as a result the Claimant was
forced to execute works in the extended period of time.
18. That in other words, the contract that was designed to be
completed within 8 months was prolonged further for an
inordinate and unreasonable period of extra 48 months
solely due the failure of the respondent in fulfilling all of his
obligations in a manner necessary for execution of works

8
 under the agreement. This adversely affected the price offer
given by the Claimant.
19. That in view of various lapses/failures on the part of the
Respondents, the execution of works in the Contract
designed to be completed by 14.01.2011 was much delayed.
That even after prolongation of the contract period for over
extra 48 months , entire work was not possible to be
completed either due to respondent’s failure to provide the
balance site hindrance free and or breach of contract on the
part of the respondent.
20. That the works which were completed by the claimant were
handed over to the respondent and who started use of the
same for movement of loaded/empty rakes of railway
wagons,
21. The provisions for grant of time extension beyond
stipulated period for completion of works under the
contract are in pursuant to Clause 5 of Section 8 –
Clauses of Contract - Time and extension for Delay. (
Ref: Agreement Exhibit C/ ,pg 143 of Vol.CD-III).

22. The Claimant states that in view of the necessity to perform

the work under the instant contract with delay on
availability of work fronts, removal of obstructions, delay in
necessary approvals by the respondent and or other causes
which were entirely beyond the control of the claimant
contractor etc where time was not intended as essence of
contract , but was an essential stipulation - the claimant
under the terms of the Contract had no other option than to
continue with performance till it was possible for the
claimant to continue, without extinguishing statutory right
9
 to recover compensation in addition to contract price ,
arising out of consequences of lapses on the part of the
Respondents and which resulted in said over run period of
performance by the Claimant.
23. Without prejudice to above submissions, the Claimant
briefly now highlights facts of the case.
24. That the Claimant on receiving the LOA immediately made
arrangement to mobilize its resources at work site. A
meeting was held with the respondent on 09.06.2010 in
regard to the works. In continuation with the discussions
made in the meeting the claimant submitted the
construction programme in connection with the whole work
by letter dated 12.06.2010.
Photo copy of the letter dated
12.06.2010 is enclosed as Exhibit
C/2, pgs. 19-20 of Vol. CD-II of
this SOC.
25. That the claimant by letter dated 17.12.2010 requested the
respondent to provide the format of Bank Guarantee to be
deposited towards issue of rails for fabrication of Points and
Crossings in connection with the instant works.
Photo copy of the letter dated
17.06.2010 is enclosed as Exhibit
C/3, pg 21 of Vol. CD-II of this
SOC.
26. That the claimant by letter dated 02.07.2010 informed the
respondent that it had already submitted the necessary
Bank Guarantee No.31/2010 dated 21.06.2010 for
Rs.5500000/- for lifting of the rails by letter No.

10
 MPL/S/RITES/Aligarh/10-11/6603 dated 22.06.2010 and that
it be provided permission to lift the rails for immediate start
of the fabrication works and also provide necessary
documents /certificates required for inspection of the Points
and Crossings by RDSO/RITES.
Photo copy of the letter dated
02.07.2010 is enclosed as Exhibit
C/4, pg 22 of Vol. CD-II of this
SOC.
27. That the brief scope of work under the present agreement is
provided in para 1.4 of Section –I, Notice inviting tender and
instructions to tenderers. The work mainly involved
rehabilitation of existing rail infrastructure and laying of rail
infrastructure for new plant units. The major activities
involved were as under:
i). Existing track to be completely renewed / renovated.
ii). Rail clusters on existing bridges ( 4 nos) to be replaced
by standard slabs/ hume pipe bridge.
iii). Concrete apron to be provided on oil sidings , under
Pitless In Motion Railway Electronic Weighbridge and at
Loco shed.
iv). Tracks to be laid for new units including construction of
one RCC box bridge.
v). Dismantling existing level crossing and providing level
crossing at new location.
vi). Construction of loco shed ( approximate size 30 m x 24
m ) , service buildings and other allied buildings
( approximate area 35m x 15m).

11
28. That it was categorically mentioned under Clause 1.5 of
Section – 1 – Notice Inviting Tender and Instructions to
Tenderers of the document which was issued by respondent
forming part of the agreement that the site for the work
was available. ( Ref : Clause 1.5 of Section – 1, pg 54
of Vol. III) . That as such it was a condition precedence of
the contract which was in form of pre-assurance that the
entire site was free from all encumbrances. The respondent
had fixed the time of completion of the works as 8 months
from the 15th day of issue of LOA. That the respondents were
therefore under obligation to provide all the fronts including
all construction drawings covering the entire scope of work
as mentioned in para 28 above immediately after issue of
LOA.
29. That the claimant had offered its rates considering that the
respondent will fulfill all reciprocal promises in such time so
as to enable the claimant to perform and complete the
entire works within the stipulated time frame in the
agreement. That it can also be presumed that in the
aforesaid consideration only the respondent also had
deleted the Clause -10CC of Section -8 of GCC in regard to
Payment due to increase /decrease in prices/wages after
receipt of tender for works. ( Ref: Agreement Exhibit C/ ,
pg. 154 of Vol. CD-III of SOC).
30. That therefore there was no clause in the agreement to
cater for the price increase after receipt of tender for the
works, i.e after issue of LOA.
31. That the claimant has submitted before this Tribunal the
detailed plan/ layout drawing of the works in scope of the

12
 instant agreement. (Ref: Exhibit C/ , pg. 256 of Vol. CD-
III of SOC).
32. That the claimant also submit a hand made drawing ( not to
scale ) to show the layout of the existing track and also the
new tracks for better understanding of the Ld. Tribunal. That
the line nos 1 to 16 in the yard are existing tracks , where
renewal/renovation was to be done replacing the existing
track and line nos 17 to 25 were tracks to be laid new old
tracks
Photocopy of the hand made
drawing is submitted as Exhibit
C/5 , pgs. 23 of Vol. CD-II of this
SOC.
33. That as per the conditions of contract , all track linking works
, renewal/renovation/ new laying of track was to be done
simultaneously and the milestone time fixed for the same
was 200 days from the reckoned date of start. It was
therefore not the term of the contract that the site for works
of renewal/renovation of existing track and or laying of new
tracks would be given on piecemeal basis and or work
executed in parts as and when it was possible for the
respondent to provide hindrance free site with no restriction
of time.
34. That the claimant by letter dated 05.07.2010 brought to the
notice of respondent that on survey of the above project
based on the drawing provided to us it has been found that
there are number of encumbrances and fouling structures at
site and which has been informed to the Executive Engineer
of respondent and also consultant engineer. The claimant

13
 also informed that all the drawings for the work were not
provided to it.
Photocopy of the letter dated
05.07.2010 is submitted as
Exhibit C/6, pgs. 24-25 of Vol.
CD-II of this SOC.
35. That the claimant, immediately after having mobilized at site
, by letter dated 17.07.2010 informed the respondent that
the work site is full of debris which includes ash, earth and
that the consultant RITES asked the claimant to excavate
and remove the same, but there was no item for such work
of earthwork in cutting in the Bill of Quantities and as such
payment for the aforesaid work would have to be made as
an extra item. The claimant also requested the respondent
to arrange removal of all steel scrap, pipes and other
building materials etc. lying at work site. The claimant also
requested for providing it with good for construction
drawings for culvert, final yard drawing and loco shed.
Photocopy of the letter dated
17.07.2010 is submitted as
Exhibit C/7, pg. 26 of Vol. CD-II
of this SOC.
36. That the claimant had entered into the instant contract with
the understanding that it will be allowed to work freely on all
sites simultaneously to enable it to complete the works in
stipulated time frame. The claimant had offered its rates for
the work on such assumption that entire site will be made
available to it as per declaration by respondent in Clause 1.5
, pg. 54 of agreement.( Ref: pg. 54 of Vol. III of SOC). The

14
 respondent had categorically mentioned in the aforesaid
clause of the tender document that the entire site was
available.
37. That the claimant submitted the then status of work by
letter dated 26.07.2010. In the same letter the claimant
again brought to the notice of the respondent that huge
quantity of earthwork in cutting / excavation was required to
be done before start of the actual execution of work of track
laying and that there was no item of work for such work in
the Bill of Quantity ( BOQ) of the instant contract agreement.
The claimant therefore requested to fix rates and mode of
payment for the same.
Photocopy of claimants letter
dated 26.07.2010 is submitted
as Exhibit C/8, pgs. 27-29 of Vol.
CD-II of this SOC.
38. That the respondent/Consultant had different work plans
altogether. The respondent handed over work site on
piecemeal basis and insisted on execution of work
accordingly. The claimant was asked to execute the track
linking work of tippler lines of the extension unit first ( Line
nos 15 & 16 ) on priority.
Photocopy of M/s RITES letter
dated 03.08.2010 is submitted
as Exhibit C/9, pg. 30 of Vol. CD-
II of this SOC.
39. That the respondent even after passing of several months
from start date had not provided approved drawings to
enable execution of the works. The datas and levels in yard

15
 drawings provided temporarily did not match with site. The
claimant through email once again insisted on providing it
with good for construction drawing and clear site, which was
pre requisite for execution of any work. The claimant also
brought to notice of respondent the requirement to provide
convenient locations within the plant premises for stacking
of ballast as per the terms of the contract, Ref: Clause 8.0
of Special Conditions of Contract , pg. 93 of Vol. III of
this SOC. The claimant also mentioned that it was incurring
huge losses due to non action on the part of the
respondent/consultant as drawings were not provided as yet,
the ground levels were not taken for start of work.
Photocopy of the emails dated
14.08.2010 & 16.08.2010 in
regard are submitted as Exhibit
C/10 & C/11, pgs. 31 & 32 of Vol.
CD-II of this SOC.
40. That the claimant by its various letters/e-mails 03.11.2010,
16.11.2010, 30.11.2010 brought to the notice of the
respondents the complete negative attitude of the
representatives of Consultant M/s RITES Ltd. and the
difficulties created by consultant representatives on day to
day basis in execution of the works of the project.
Photocopy of letters/email dated
03.11.2010; 16.11.2010,
02.12.2010 are submitted as
Exhibit C/12, C/13, & C/14, at pgs
33, 34, & 36 respectively of Vol.
CD-II of this SOC.

16
41. That the respondent Exexutive Engineer (E.E) by letter
brought to the notice of the Consultant that consultant team
was not cooperating with the respondent department and
that the non cooperation and negative attitude of the
consultant representatives at site continued further , the
respondent will be compelled to withhold the fees for the
work not supervised or delayed on account of the
consultant.
Photocopy of respondent E.E
above said letter to consultant is
submitted as Exhibit C/15, pg. 37
of Vol. CD-II of this SOC.

42. That the consultant replied to the respondent letter as

mentioned above by a letter dated 08.11.2010. In reply to
aforesaid letter of the consultant, the respondent E.E by
another letter replied categorically stating the non
cooperation and negative attitude of the consultant
representatives at work site , The respondent alleged that
the consultant had not provided a full time Project Manager
till date at the work site and that the consultant were not at
all serious with timely completion of the works. The
respondent also alleged that the consultant were not
performing project management with full devotion. No clear
instructions to work were issued by the consultant to the
claimant contractor. The respondent further asked the
consultant to resolve all legitimate issues so that max.
progress could be achieved by the claimant contractor. The

17
 aforesaid letter was also forwarded to high officials of the
respondent department.
Photocopy of respondent E.E
above said letter dated
30.11.2010 to consultant is
submitted as Exhibit C/16, pg. 38
of Vol. CD-II of this SOC.

43. That the contents of the above said respondent own letters
clearly bring out in open that various difficulties were
created by the consultant purposely and with design, for
reasons best known, so that work was not progressed in a
smooth and fast manner to ensure timely completion. The
consultant team leader at site acted in a biased manner, and
with a negative attitude. The consultant representative
caused various hurdles and there were no clear cut
instructions for certain works to claimant contractor due to
which work suffered.
44. That the claimant by letter dated 02.12.2010 brought to the
notice of the respondent the facts and non cooperation by
the consultant in regard to execution of work in pre & post
tippler section.
Photocopy of letter dated
02.12.2010 is submitted as
Exhibit C/17, at pg. 40 of Vol. CD-
II of this SOC.
45. That the respondent Chief Engineer, Construction , ( CE )
also by his letter dated 04.12.2010 to Chief Engineer ( Civil,
Lucknow confirmed consultant representatives non

18
 cooperation and negative attitude and requested that the
matter be taken up with CMD of RITES.
Photocopy of letter dated
04.12.2010 is submitted as
Exhibit C/18, at pg. 41 of Vol. CD-
II of this SOC.
46. That the Manager Civil of Consultant by letter dated
31.12.2010 informed the claimant that provision of blanket
layer with 300mm thickness was specified in pre-tippler line
nos.15 & 16 and reception line nos.19 & 20 only. There was
no provision of blanket layer in other new lines and also the
lines of existing yard were to be constructed/renewed
without blanket layer.
Photocopy of letter dated
31.12.2010 is submitted as
Exhibit C/19, at pg. 42 of Vol. CD-
II of this SOC.
47. That the claimant by letter dated 14.01.2011 informed the
respondent that it would not be responsible for loss of
ballast due to penetration into the subgrade or for any other
defect that may arise in future due to non provision of
blanketing as instructed by consultant.
Photocopy of letter dated
14.01.2011 is submitted as
Exhibit C/20, at pg. 43 of Vol.
CD-II of this SOC.
48. That the consultant by letter dated 22.01.2011 informed the
claimant that while approving the engineering scale plan
(ESP) North Central Railway, Allahabad have suggested that

19
 signalling facilities be provided between Harduaganj Railway
station and HTPS yard for smooth functioning of traffic and
therefore the claimant was requested to arrange track
fittings/ materials suitable for signaling facilities in the siding
and in plant tracks. This show that the respondent had
engaged the claimant into the instant contract even without
the finalization and approval of the Engineering Scale Plan
(ESP) by the Railway department and that further after
expiry of the stipulated contract period changes and
material modification were proposed.
Photocopy of letter dated
22.01.2011 is submitted as
Exhibit C/21, at pg. 44 of Vol.
CD-II of this SOC.
49. That the stipulated time for completion of the work was over
on 14.01.2011. The claimant by letter dated 27.01.2011
stating the reasons due to which the work could not be
completed within the stipulated time submitted the
application for extension of time for completion of the work.
The reasons for seeking time extension were not attributable
to the claimant.
Photocopy of letter dated
27.01.2011 is submitted as
Exhibit C/22, at pg. 45 of Vol.
CD-II of this SOC.
50. That it is thus established that the entire tender for the
subject works was called without formal approval by the
concerned railway authority and the scope of supply of track
fittings and materials in the BOQ of the instant work were

20
 not according to the requirement of the railway authority.
The claimant by letter dated 28.01.2011 informed that it had
already procured and brought to site huge quantity of track
fittings/materials and also balance material were ready for
dispatch, which was required to be done by the claimant in
terms of the contract. The claimant informed that it was not
possible to change the specification of track materials at the
belated stage and that any change would create a new item
in the contract for which necessary approval/sanction would
have to be accorded and also the entire materials as in the
BOQ brought to site by the claimant would have to be taken
over /accepted and paid by the respondent.
Photocopy of letter dated
28.01.2011 is submitted as
Exhibit C/23, at pg. 47 of Vol.
CD-II of this SOC.
51. That a circular dated 31.01.2011 stating the revised
minimum wages to be paid to unskilled, semi skilled and
skilled labours was communicated to the claimant by the
respondent.
Photocopy of circular dated
31.01.2011 is submitted as
Exhibit C/24, at pg. 48 of Vol.
CD-II of this SOC.
52. That the respondent Supretending Engineer ( SE ), referring
to respondents various letters , total six numbers, by its
letter in February 2011 requested RITES Ltd to change the
Project Manager of the consultant deployed at site
immediately with experienced and capable person.

21
 Photocopy of Respondent SE
letter to RITES Ltd. is submitted
as Exhibit C/25, at pg. 49 of Vol.
CD-II of this SOC.

53. That by letter dated 01.04.2011 the respondent executive

engineer informed the claimant that 45 days shutdown was
being provided for complete renovation of track no.1, 5, 7, 8
& 9 (as per new drawing) and renewal of track for chainage
468.00 (take off point near Harduaganj Station) to
Ch.2200.00 (near Durga Mandir). The claimant was
requested to complete the job with full swing.
Photocopy of letter dated
01.04.2011 is submitted as
Exhibit C/26, at pg. 51 of Vol.
CD-II of this SOC.
54. That the claimant submits cutting of local newspaper dated
17.04.2011 wherein it was reported that local people of
Paitha Bazar Mandir had obtained stay order from the High
Court and due to which the work of railway track was
affected and that the respondent engineer were not taking
any initiative to solve the matter through bilateral talks with
local people.
Photocopy of newspaper cutting
dated 17.04.2011 is submitted
as Exhibit C/27, at pg. 53 of Vol.
CD-II of this SOC.
55. The claimant by letter dated 20.04.2011 requested the
respondent for adhoc payment towards execution of

22
 earthwork in cutting/excavation done by the claimant as
extra items of work. The earthwork in cutting was not an
item of work included in the original BOQ of the contract and
as such extra item of work for the same was required to be
introduced. But even after passage of more than 11 months
from date of LOA (which includes the entire stipulated
completion period of 8 months) the respondent had failed to
approve/sanction the extra work and its rate for payment to
the claimant. The claimant in good faith and interest of early
work completion had continued execution of the extra item
of work as earthwork in cutting was the preliminary work
before the work as in scope of the contract could be
executed. As per the agreed terms of the agreement the
respondent were to approve / sanction rates within a period
of 45 days, but the respondent did not show any urgency to
approve the rates so that due payments could be made to
the claimant for work executed.
Photocopy of letter dated
20.04.2011 is submitted as
Exhibit C/28, at pg. 53 of Vol.
CD-II of this SOC.
56. That the claimant by letter dated 17.05.2011 informed the
respondent the problems being faced by it in final
completion of works to roll empty wagon for tippler testing.
That huge difficulties were faced by claimant due to non
shut down of the existing OHE and also due to wrong
drawings nos. for materials provided to the claimant.
Photocopy of letter dated
17.05.2011 is submitted as

23
 Exhibit C/29, at pg. 54 of Vol.
CD-II of this SOC.
57. That the claimant by letter dated 19.05.2011 informed the
respondent chief engineer about the discrepancy in
thickness in the concrete structure pointed out by the
vendor and also the hindrances of OHE and Arc Lever was
still continuing and immediate decision was requested so
that the targets as fixed in the meeting dated 11.05.2011
could be achieved.
Photocopy of letter dated
19.05.2011 is submitted as
Exhibit C/30, at pg. 55 of Vol. CD-
II of this SOC.
58. That the claimant by letter dated 23.06.2011 informed the
respondent that necessary personnel/engineers were
already available at site even when only limited scope of
work was available. The claimant also informed that it was
doing quality works when all men and machinery was
available at site.
Photocopy of letter dated
23.06.2011 is submitted as
Exhibit C/31, at pg. 57 of Vol. CD-
II of this SOC.
59. That the respondent by letter dated 20.06.2011 , after
nearly 153 days from date of submission of claimants
application for time extension, communicated extension of
time of completion upto 31.10.2011. That it was mentioned
in the memorandum that the time extension provided would
not form the basis of any additional claim.

24
 Photocopy of letter dated
20.06.2011 is submitted as
Exhibit C/32, at pg. 58 of Vol.
CD-II of this SOC.
60. That in reply to the respondent office memorandum dated
20.06.2011 in regard to extension of time the claimant by
letter dated 24.06.2011 once again submitted that the delay
in the above project was not attributable to it and that the
claimant had suffered huge losses in the instant project and
hence entitled to compensation. The claimant made
known to the respondent that it did not agree to
respondent submissions in regard to delay and
providing time extension with condition that
compensation for delay , if any, will be decided at a
later date by UPRVUNL and that the time extension
will not form the basis for additional claim by the
claimant.
Photocopy of letter dated
24.06.2011 is submitted as
Exhibit C/33, at pg. 59 of Vol. CD-
II of this SOC.
61. That the claimant by letter dated 13.08.2011 brought to the
notice of the respondent that inspite of several assurances
at various level the approval of rates for earthwork in
excavation was not provided even till aforesaid date. The
claimant impressed upon the respondent that the earthwork
in excavation was the first item of work for start of execution
of track linking work. The respondent was aware that in the
entire area where new track was to be laid, over the years

25
 had been utilized as a dumping yard for earth/ ash and or
other materials. As a result the level of ground in the area
had increased. Even the existing track was all covered with
debris over the years and for dismantling and next
renewal/renovation of the old existing track with new rail
track required removed of the debris first. The rail track had
to be laid at designed level. As such , before start of the
track laying , removal of all debris by way of excavation upto
a level below the track as per plan & approved design was to
be obtained. But there was no item of work for excavation of
the earth/debris in the Bill of Quantity ( BOQ) of the
Contract. The claimant also informed that the necessary
drawing for execution of APRON work , consisting of making
a structure / platform made of cement concrete work with
track directly laid over the same, was also not provided till
date due to which the claimant was unable to pick up the
said work.
Photocopy of letter dated
13.08.2011 is submitted as
Exhibit C/34, at pg. 60 of Vol.
CD-II of this SOC.
62. That the claimant by letter dated 27.08.2011 informed the
respondent that further excavation work was held up due to
non sanction of the rate for extra item work of earthwork in
excavation by the respondent. The claimant also informed
that various delays in handing over necessary good for
construction drawing by the respondent. It was also brought
to the notice of respondent that there was huge scrap and
structural materials lying in the area of work of the claimant

26
 namely; line no.26 & 27 in the new yard and line no.2 &
APRON area, which was required to me removed. The issues
of Mata Temple/court cases etc. , instituted by local people,
were still not resolved.
Photocopy of letter dated
27.08.2011 is submitted as
Exhibit C/35, at pg. 62 of Vol. CD-
II of this SOC.
63. That the works under the instant contract could not be
completed within the extended period upto 31.10.2011 and
therefore the claimant submitted the application dated
03.11.2011 stating the various reasons of delay for further
grant of extension of time upto 31.05.2012, which were
attributable to the respondent in terms of the contract. The
claimant also requested the respondent to handover the
entire area by 10.11.2011.The reasons for non completion of
the works within 31.10.2011 as mentioned in the aforesaid
application were as under:
i. The work was …
ii.

Photocopy of letter dated

03.11.2011 is submitted as
Exhibit C/36, at pg. 64 of Vol. CD-
II of this SOC.
64. That the claimant by letter dated 25.11.2011 brought to the
notice of respondent that it was forced to execute works in
piecemeal basis which caused huge losses to it and at the
same time the labourer were rendered idle. The claimant

27
 submitted status of all the railway lines in scope of work in
separate sheet attached to the letter and which showed that
many of the tracks were still not handed over due to
persisting hindrances caused by construction materials of
other agency, old loco shed, old p-way materials, batching
plant, cement godown and road.
Photocopy of letter dated
25.11.2011 is submitted as
Exhibit C/37, at pg . 65 of Vol.
CD-II of this SOC.
65. That in reference to claimants letter dated 27.11.2010, after
more than 12 months, the respondent chief engineer/civil
communicated to the respondent SE (Civil) by letter dated
03.12.2011 grant of approval in regard to extra item of
earthwork in excavation and allied item work for the instant
agreement. The letter clearly shows involvement of
excavation of huge quantity , about 87000 cum of earth and
disposal of the same upto 1 Km. distance, which was a new
item of work to be done by the claimant. It was also
mentioned as term and condition, Sl. No. 3 & 5 of the
memorandum , as under:
“3. The maximum allowed payment against the
extra item will be subject to the limit of Rs.
8829600/-.
5 The above extra item work will not be the basis
of time extension etc. and no claim of the
contractor in the respect will be entertained”.
Photocopy of letter dated
03.12.2011 is submitted as

28
 Exhibit C/38, at pg. 67 of Vol. CD-
II of this SOC.
66. That thus the total quantity of extra item of earthwork in
cutting was restricted to 87000 cum. Further the respondent
could not have unilaterally decided that the extra item work
will not be the basis of time extension etc. and no claim by
claimant contractor in respect will be entertained, when they
themselves were first in default of wrong planning and
making estimates of the project and thereafter taking huge
time of more than 12 months to approve and sanction the
extra work item and the rates for payment to the claimant.
That it was the term of the agreement that the respondent
will approval /sanction of extra necessary items by way of
variation in contract within days . ( Ref: Clause of
agreement , on pg of Vol. CD-III of SOC. What is the
provision
67. That the claimant submits herewith the minutes of meeting
held on 14.02.2012 between the consultant M/s RITES Ltd.
and the claimant in regard to progress of work and which is
self explanatory. The status of work of service buildings ,
Loco shed, Track lines in New Yard, and Old Yard, Apron
work & Bridge work all were discussed. The details clearly
shows that even after passage of nearly 22 months from
date of LOA the respondent was not able to arrange removal
of hindrances and handover clear site to the claimant. There
was admission by counsultant/respondent that Line nos 15,
16, 17, 18, 21, 22, 27 were completed to extent
required/possible. That further line nos 19 and 20 were in
progress and balance in line no 27 would be possible to be

29
 completed after removal of batching plant. There was also
admission that in old yard there were hindrances in line nos
1, 2, 3, 4, 5, 6, 7, 12, & 13 which could be started after
clearance of hurdles/obstacles/ loco shed and that work in
other lines was in progress/ completed. That there were
hindrances in lines due to batching plant, OHE etc and work
in such lines was possible only after their dismantling. It was
also agreed /admitted in the meeting that apron work could
not be started till permission was provided by the
respondent, UPRVUNL.
Photocopy of minutes of meeting
dated 14.02.2012 is submitted
as Exhibit C/39, at pg. 68 of Vol.
CD-II of this SOC.
68. That the extension of time was granted upto 31.05.2012 and
communication to the claimant to this effect was made by
office memorandum dated 02.03.2012 after nearly 119 days
from date of submission of claimants application for time
extension,
Photocopy of letter dated
02.03.2012 is submitted as
Exhibit C/40, at pg. 70 of Vol.
CD-II of this SOC.
69. That the claimant by letter dated 16.03.2012 brought to the
notice of the respondent the areas which were still not
provided for execution and completion of the work under the
agreement. The claimant also brought the facts that it was
suffering huge losses due to tremendous escalation in the
market and in consequence the claimant demanded

30
 escalation of rate by 25% minimum to tide over the losses
incurred by it and/or in alternative make applicable clause
10CC of the agreement which provides for “Payment due
to increase/decrease in prices/wages after receipt of
tender for works” and which was deleted from the scope
of instant agreement as the stipulated time provided/fixed
for completion of the work was less than 1 year.
Photocopy of letter dated
16.03.2012 is submitted as
Exhibit C/41, at pg. 71 of Vol. II
of this SOC.
70. That the claimant by letter dated 20.04.2012 once again
informed the respondent that all site was not provided to it
till date. The claimant informed that the vender M/s
RICELAKE have sent email to consultant RITES to provide
them with ESP for approval of location by RDSO. As such it is
evident that unless the location of In-motion bridge was
approved by RDSO , start of foundation work of the same
was not possible. The respondent and or the Consultant both
had not ensured to obtain the approval earlier. The claimant
also requested respondent to provide escalation in the
agreement so that it could mitigate the losses caused by the
delay attributable to the respondent.
Photocopy of letter dated
20.04.2012 is submitted as
Exhibit C/42, at pg. 73 of Vol.
CD-II of this SOC.
71. That the claimant by letter dated 22.05.2012 bought to the
notice of the respondent that the instant project which was

31
 envisaged to be completed within 8 months, which was the
time allowed under the contract, had already over run for
extra 16 months and even then complete site was not
handed over by the respondent due to which all the planning
of the claimant was completely disturbed and the claimant
was forced to incur huge losses. The claimant also informed
that the market prices had risen tremendously and
execution of works at same rates was impossible. The
claimant had earlier also raised the issue of revision of
rates / payment of escalation in the agreement during
various meetings. The claimant also drew the attention of
the respondent to the provisions of Clause 10CC of General
Conditions of Contract ( GCC) in the text/body of the
agreement , provisions of which was clear and unambiguous.
The claimant requested the respondent to fix the various
components of cement , steel, material, labour and POL so
that escalation bill could be prepared and submitted for
consideration and early payment. The claimant had raised
the issue of payment of escalation in meetings in presence
of both the respondent and the consultant and it was agreed
that escalation was payable in the facts and circumstances
of the instant case.
Photocopy of minutes of meeting
dated 22.05.2012 is submitted
as Exhibit C/43, at pg. 78 of Vol.
CD-II of this SOC.
72. That the works under the instant contract could not be
completed even within the 2 nd extended period upto
31.05.2012 and therefore the claimant submitted the

32
 application dated 26.05.2012 stating the various reasons of
delay for further grant of extension of time upto 31.12.2012.
The reasons stated were:

The claimant had categorically requested while

seeking aforesaid time extension that the respondent
was requested to grant time upto 31.12.2012 , along
with escalation in prices and also to handover the
entire area by 30.06.2012.
Photocopy of letter dated
26.05.2012 is submitted as
Exhibit C/44, at pg. 80 of Vol. CD-
II of this SOC.
73. That it can be seen that the claimant had sought further
time extension to complete the works within 31.12.2012
provided the respondent handed over all site within
30.06.2012. The claimant also stressed that price escalation
was to be provided to it under the provisions of Clause 10CC
of GCC as reasons of delay were not attributable to it. The
claimant also brought to notice that changes in the nature of
scope of work in the contract was made in regard to
renovation works of existing bridges. The earlier scope of
laying of RCC slab was now changed to construction of the
precast RCC box.
74. That in continuation of its letter dated 22.05.2012 , the
claimant by letter dated 20.06.2012 submitted the
escalation bill amounting to Rs. 87,73,104.21p , prepared by
it based on components for consideration and payment to it.

33
 The claimant specifically stressed that release of payment of
escalation bill was necessary so that works could be
expediated.
Photocopy of letter dated
20.06.2012 is submitted as
Exhibit C/45, at pg. 82 of Vol.
CD-II of this SOC.
75. That the respondent SE by its letter dated 07.08.2012
informed that an amount of Rs. 300000/- was withheld from
RA bill 15 for not starting the work of In-motion Weigh Bridge
and that respondent advised the claimant to complete the
work of Weigh Bridge and commission the same early.
Photocopy of letter dated
07.08.2012 is submitted as
Exhibit C/46, at pg. 103 of Vol.
CD-II of this SOC.
76. That in reply to the aforesaid letter as in para 75 above , the
claimant by letter dated 08.08.2012 informed the
respondent that no action was taken by respondent on its
letter dated 02.07.2012 and that the layout plan has still not
been approved by the Railway zonal authorities due to which
the start of work of In-motion weigh bridge at site was
pending. The Claimant also informed that there was no
terms of the agreement to keep withheld any money
arbitrarily and that the project was already suffering
because of cash flow problem.
Photocopy of letter dated
08.08.2012 is submitted as

34
 Exhibit C/47, at pg. 104 of Vol.
CD-II of this SOC.
77. That the claimant by letter dated 25.09.2012 attached
photographs, as evidence , showing the hindrances on
various lines in the yard, which were still existing and due to
which completion of works therein was not possible and for
which no action was being taken by the respondents inspite
of repeated request through various letters and as well as in
person during progress meetings. The claimant also
informed that the respondent could not expect the claimant
to continue with the works at the same rates, when the
respondent had failed to fulfill the fundamental obligations
of handing over of complete site as mentioned in the
agreement, that too when a specific positive assertion was
provided by respondent that entire site was available. ( Ref:
in agreement Clause 1.5 at pg. of Vol. CD-III of SOC). The
claimant therefore requested the respondent to revise the
rates.
Photocopy of letter dated
25.09.2012 is submitted as
Exhibit C/48, at pg. 105 of Vol.
CD-II of this SOC.
78. That the claimant by its letter dated 28.09.2012 informed
that the In-motion weigh bridge was expected to be
commissioned by 10.11.2012. The claimant also requested
once again to provide entire balance site hindrance free and
also provide escalation in the contract as per clause 10CC of
GCC.

35
 Photocopy of letter dated
28.09.2012 is submitted as
Exhibit C/49, at pg. 107 of Vol.
CD-II of this SOC.
79. That the respondent by letter dated 20.10.2012 informed t
e claimant that Railway safety team had visited the site for
inspection of the railway tracks and pointed out the need for
immediate fixing of check rails at new railway crossing. The
claimant was advised to complete the same at the earliest.
Photocopy of letter dated
20.10.2012 is submitted as
Exhibit C/50, at pg. 108 of Vol.
CD-II of this SOC.
80. That the letter in para 74 dated 20.10.2012 above of the
respondent clearly proves that no other defects were found
during the inspection of the Railway Safety Team and there
was smooth operation of the railway system being carried on
the tracks newly laid down and or tracks renovated in old
yard by the claimant.
81. That by letter dated 22.10.2012 the claimant informed the
respondent that Line No. 7 was fit for railway traffic and the
start of movement of traffic could be made on the same by
the respondent.
Photocopy of letter dated
22.10.2012 is submitted as
Exhibit C/51, at pg. 109 of Vol.
CD-II of this SOC.
82. That the respondent E.E referring to the letter of the
claimant dated 25.09.2012 ( Ref: C/48 ) , by its letter dated

36
 12.11.2012 gave the status of the hindrances in various
lines and which is self explanatory, thus admitting non
fulfillment of obligations and handing over of work site by
the respondent , due to which the contract period was
prolonged. There is clear admission on the part of the E.E in
regard to persistence of hindrances even at material time.
The removal of the existing Over head electrical masts ( OHE
masts ) fouling the alignment was under process by the
Railways and that it was time taking process.
Photocopy of letter dated
12.11.2012 is submitted as
Exhibit C/52, at pg. 110 of Vol. II
of this SOC.
83. That it was not the term of the contract to do execute works
in piecemeal manner. The milestone fixed for new
lines/renewal and or renovation of all existing lines was one.
But the claimant was forced to execute work in parts, as and
when front provided, with time not the essence of the
contract. The continuity in works for the deployed labours
and machinery could not be thus ensured, and thus the
deployed resources were forced to remain idle at several
times causing financial injury to the claimant. The claimant
was unable to move away the resources to other work sites
for business and profit. The claimant was also subjected to
expenditures on onsite and offsite overheads in regard to
instant contract. All such expenditures were rendered
infructuous and thus accrued as losses. There is no term of
the contract that the claimant will not be entitled to claim

37
 such losses arising out of Breach of Contract on the part of
the employer, i.e the respondent.
84. That the respondent was thus in knowledge that work of
track renewal/renovation under the instant agreement
required removal of certain OHE masts fouling the alignment
and construction of new masts. The aforesaid work was to
be done by the Railway department themselves. Without
execution of the aforesaid work it was not possible to
complete the track work renewal/renovation of a certain
yard railway lines. Having known the aforesaid fact, the
respondent had taken no action to ensure removal of the
infringing masts before awrd of work to the claimant and or
within reasonable time after award of work. The said fact
clearly shows the poor planning on the part of the
respondent and also confirms that the claimant was not
responsible for the delay in completion of the works under
the instant agreement.
85. That the averments as made by the claimant in paras 82 to
84 above are further confirmed by the contents of letter
dated 20.11.2012 of the respondent SE, wherein it was
admitted that there was need for shut down of existing OHE
lines for completion of the works under the agreement and
which could not be arranged earlier by the respondent.
Photocopy of letter dated
20.11.2012 is submitted as
Exhibit C/53, at pg. 112 of Vol.
CD-II of this SOC.
86. That in continuation of its earlier letters in regard to
persisting hindrances even after passing of 30 months from

38
 the date of issue of LOA, the claimant by letter dated
23.11.2012 once again informed the respondent that the
entire site was still not handed over. The claimant by the
letter submitted the details of line which required immediate
clearance so that the claimant could deploy its idling labour
to compete works in such areas. The claimant attached
photographs of the hindrances in various lines as evidence.
The claimant informed the respondent that due to non
fulfillment of primary obligation of handing over of all site,
the claimant had incurred huge losses in shape of
overheads, idleness, loss of profit etc. and that non provision
of escalation caused further losses. The claimant requested
the respondent to pay all the losses along with interest.
Photocopy of letter dated
23.11.2012 is submitted as
Exhibit C/54, at pg. 113 of Vol.
CD-II of this SOC.
87. That there is no agreed term of the contract which prevents
and prohibits payment of interest on delayed payments by
the respondent.
88. That the claimant by its letter dated 28.11.2012 once again
submitted that the respondent was solely responsible for the
non handing over of the entire site even after passing of
more than 30 months. The claimant submitted that Clause
10CC was retained in the text of the agreement document
and hence cannot be considered as not applicable after the
stipulated contract period and more so when there was
breach of contract on the part of the respondent. The
claimant made known that interest would have to be paid for

39
 delay in payments. The claimant also notified that due to
respondents lapses and failures the claimant had suffered
tremendous losses due to idleness of resources, overheads ,
loss of profit etc and which was to be compensated by the
respondent.
Photocopy of letter dated
28.11.2012 is submitted as
Exhibit C/55, at pg. 122 of Vol.
CD-II of this SOC.
89. That the claimant by its another letter dated 28.11.2012,
lodged its strong protest to the arbitrary deductions ( not as
per contract) of amount of Rs. 23,36,681/- from the 16th RA
bill released on 12.11.2012. It was also submitted that
payment for works in the 16th bill have been made arbitrarily
with reduced rates, which is beyond the terms of the
agreement. The claimant requested the respondent to
release the entire withheld amount with 18% interest in the
interest of the project.
Photocopy of letter dated
28.11.2012 is submitted as
Exhibit C/56, at pg. 129 of Vol.
CD-II of this SOC.
90. That the claimant by its letter dated 17.12.2012 submitted
upto date Price Variation bill amounting to Rs.
1,42,16,114.46 prepared till 16th RA bill for the above project
based on the formula given in the agreement and requested
for release of payment immediately.
Photocopy of letter dated
17.12.2012 is submitted as

40
 Exhibit C/57, at pg. 130 of Vol.
CD-II of this SOC.
91. That the claimant submitted to the respondent RA bill no.17
by its letter dated 02.02.2013.
Photocopy of letter dated
02.02.2013 is submitted as
Exhibit C/58, at pg. 156 of Vol.
CD-II of this SOC.
92. That the claimant by letter dated 04.02.2013 informed the
respondent that the quantities of extra item of earthwork in
cutting and that of dismantling of existing track were to
increase further and hence requested the respondent to give
necessary approval so that execution of work of the above
said items could be continued. The respondent while earlier
approving the extra item of earthwork in cutting in the
contract had restricted any kind of variation in the
quantity/value of the sanctioned amount. S such unless
further approval was accorded by competent authority , no
further work of such item could be executed.
Photocopy of letter dated
04.02.2013 is submitted as
Exhibit C/59, at pg. 157 of Vol.
CD-II of this SOC.
93. The above said fact further indicates the wrongful planning
and management on the part of the respondent and
consultant engineers who had failed to estimate the required
quantities properly and therefore themselves responsible
for the resulting stalemate and stoppage of further works.

41
94. That the respondent E.E by its letter dated 12.02.2013
informed the claimant that the escalation bill submitted by
the claimant was not considerable and therefore returned
the same, stating that Clause 10CC of GCC was not
applicable to the instant contract as it was a deleted clause
and the same was not to be read for the execution of the
instant agreement, and that there was no provision of price
escalation in the instant contract.
Photocopy of letter dated
12.02.2013 is submitted as
Exhibit C/60, at pg. 158 of Vol.
CD-II of this SOC.
95. That the claimant by letter dated 13.02.2013 informed the
respondent that the In- motion Weigh bridge was
commissioned long back and was in use by the respondent.
The claimant also informed that minor defects arisen during
usage were also rectified.
Photocopy of letter dated
13.02.2013 is submitted as
Exhibit C/61, at pg.159 of Vol.
CD-II of this SOC.
96. That the claimant by its letter dated 15.02.2013 brought to
the notice of the respondent General Manger, that the
payment of its escalation bill submitted by letter dated
17.12.2012 was still not made. The payment of RA bills were
also not made in time. Further huge amounts had been
illegally held back from claimants RA bills causing huge cash
flow problems at work site. The Claimant sought intervention

42
 of the respondent General Manager to sort out the issues
within a week time so that work was not hampered.
Photocopy of letter dated
15.02.2013 is submitted as
Exhibit C/62, at pg. 160 of Vol.
CD-II of this SOC.
97. That the respondent by letter dated 28.02.2013 advised the
Consultant to expedite and process 17th RA bill of the
claimant lying with the Consultant since more than 20 days.
Photocopy of letter dated
28.02.2013 is submitted as
Exhibit C/63, at pg. 161 of Vol.
CD-II of this SOC.
98. That the claimant by its letter dated 28.02.2013 brought out
the true picture of the site, by attaching the status of work
affected severely due to hindrances, delay in payment of
bills, unilateral and illegal deductions and non payment of
escalation. That it is apparent from the chart that over 2500
m out of total 2950 m balance track linking/renovation site
( nearly 80%) was still under obstructions and that progress
was being done in areas made available and where work
was possible.
Photocopy of letter dated
28.02.2013 is submitted as
Exhibit C/64, at pg. 162 of Vol. I
CD-I of this SOC.
99. That the claimant by its letter dated 01.03.2013 once again
submitted the status of work of different lines along with
photographs as evidence.

43
 Photocopy of letter dated
01.03.2013 is submitted as
Exhibit C/65, at pg. 164 of Vol.
CD-II of this SOC.
100. That in reply to the respondent SE letter dated 20.02.2013 in
regard to admissibility of price escalation in the instant
contract, the claimant by letter dated 04.03.2013 requested
the respondent to reconsider the applicability of the Clause
of payment of price escalation when the contract period of 8
months was forced to be extended due to non availability of
site attributing to the lapses and failures on the part of the
respondent and that the claimant hoped that it will be
compensated for the losses incurred by it.
Photocopy of letter dated
04.03.2013 is submitted as
Exhibit C/66, at pg. 166 of Vol.
CD-II of this SOC.
101. That the claimant submitted to the respondent RA bill no.18
by its letter dated 06.03.2013.
Photocopy of letter dated
06.03.2013 is submitted as
Exhibit C/67, at pg. 168 of Vol.
CD-II of this SOC.
102. That by office memorandum dated 08.03.2013 the
respondent E.E released the withheld amount for work of In-
motion Weigh Bridge which was completed and
commissioned and found working satisfactorily and handed
over to UPRVUNL for commercial use. The relevant
documents relating to handing over also enclosed along

44
 were also enclosed with office memorandum. Thus the
respondent admitted that the delay in installation of the In-
motion weigh bridge was not attributable to the claimant
and the respondent had no claim of any kind or manner.
Photocopy of letter dated
08.03.2013 is submitted as
Exhibit C/68, at pg. 169 of Vol.
CD-II of this SOC.
103. That the respondent by another letter dated 08.03.2013
advised the Consultant to process 18 th bill of the claimant
early.
Photocopy of letter dated
08.03.2013 is submitted as
Exhibit C/69, at pg. 173 of Vol.
CD-II of this SOC
104. That the claimant by letter dated 21.03.2013 brought out to
the notice of the respondent Chief Engineer that its 17 th and
18th bill were not paid to it and therefore sought his kind
intervention so that it was able to tide over the crisis and
smoothly complete the works.
Photocopy of letter dated
21.03.2013 is submitted as
Exhibit C/70, at pg. 174 of Vol.
CD-II of this SOC.
105. That in reply to letter dated 18.03.2013 by the respondent
E.E , the claimant by letter dated 22.03.2013 conveyed its
anguish on the contents of the respondents letter alleging
that the claimant was not serious to complete the works.
The claimant drew the attention of the respondent to its

45
 letters dated 15.02.2013 ( C/ ), 28.02.2013 ( C/ ) ,
01.03.2013 (C ), 21.03.2013( C/ ), The claimant also made
it known that neither action was taken for the release of the
payment for the 17th and 18th RA bills, nor the escalation bill
submitted by the claimant was processed. The claimant
informed that it was subjected to huge losses due to extra
overheads, loss of profit, idleness of resources, interests etc.
Photocopy of letter dated
22.03.2013 is submitted as
Exhibit C/71, at pg. 176 of Vol.
CD-II of this SOC.
106. That the respondent by letter dated 25.03.2013 intimated to
the claimant that the removal of hindrances in various tracks
as pointed out by the claimant by its letter dated 01.03.2013
( Ref: C/ ) was under process, most of the hindrances were
removed. The respondent in the same letter gave the status
of removal of hindrances from various tracks. The
respondent requested the claimant to complete the works in
areas where hindrances were removed. The respondents
referring to decision dated 18.03.2013 , also advised the
claimant to now remove all the hindrances fouling the
alignment in line nos 8, 10, 11, 12, 13, & 14. The respondent
also admitted that process of removal of OHE masts had
started.
Photocopy of letter dated
25.03.2013 is submitted as
Exhibit C/72, at pg. 178 of Vol.
CD-II of this SOC.

46
107. That thus there was admission by the respondents in regard
to presence of hindrances in the lines even till nearly 34
months from the date of LOA. The stipulated period of
contract was 8 months within which all work in scope of the
instant contract was to be completed and which was only
possible after the respondent fulfilled the reciprocal
obligations of providing and making available for working
the entire fronts. But, the respondents failed to do and
therefore were in Breach of the Contract. The claimant had
offered its rates and entered into the contract with the belief
that it would be possible for him to complete the entire
works within the stipulated 8 months period. The claimant
had therefore taken into considerations all costs limited to 8
months towards overhead expenditures, deployment of
personals/machinery and other resources and commission
on keeping bank guarantee. But the same was not possible
due to the lapses and failures on the part of the respondent
and due to which the claimant had to execute the works on
piecemeal basis, the contract period was inordinately
prolonged. The claimant had to suffer huge losses on
account of continued expenses on overheads, onsite and
offsite, idle men and machinery, loss of profit as it was
unable to move to other work sites for business and gain.
The claimant also incurred huge other infructuous
expenditures which was not envisaged and considered in the
rates offered for the works at tender time during the
prolonged period.
108. That besides the lapses and failures of providing hindrance
free fronts, the respondent also did not fulfill the obligation

47
 of making timely payment for the executed works due to
which the claimant was put to great difficulties and which
affected the progress of the works. That by letter dated
02.04.2013 the claimant once again requested the
respondent to expedite the release of payments of RA bills.
Photocopy of letter dated
02.04.2013 is submitted as
Exhibit C/73, at pg. 180 of Vol.
CD-II of this SOC.
109. That it was an agreed term of the contract that payment on
intermediate certificates was to be regarded as ADVANCES,
Clause 7 of GCC , Exhibit C/ , pg of Vol. CD-III of SOC.
Contents of Clause 7 is extracted below:
“ ….. Payment on account of amount admissible shall
be at such rates as decided by the Engineer–in-
Charge – 75% of made by the Engineer –in-Charge
certifying the sum to which the contractor is
considered entitled by way of interim payment bill
amount may be paid within 3 working days
( excluding the day of submission ) of presentation of
the bill by the contractor to the Charge or his
Engineer together with the account of the material
issued by the Employer , or dismantled materials, if
any. In the case of works outside the headquarters of
the Engineer–in-Charge the period of three working
days will be extended to five working days. Balance
amount of bill may be paid within 15 working days of
the presentation of bill …….”.

48
110. That based on the above said specific stipulations in the
contract documents, the claimant had submitted its rates for
the works under the instant contract. But the respondent
never adhered to the said conditions of payment of RA bills ,
which were delayed at times for more than 6 months. As
such the respondent were in breach of the contract.
111. That the claimant by its letter dated 03.04.2013 replied
parawise to the contents of the letter dated 25.03.2013 of
the respondent E.E wherein the presence of hindrances even
on date/material time was admitted and the claimant was
asked to remove some of the hindrances at its end. The
claimant also requested early payment of the RA bills and
escalation bill.
Photocopy of letter dated
03.04.2013 is submitted as
Exhibit C/74, at pg. 181 of Vol.
CD-II of this SOC.
112. That the claimant by letter dated 12.04.2013 referred to its
earlier letters dated 04.02.2013 ( C/ ) , and 03.04.2013
( C/75) and sought instructions once again from the
respondent whether it was to continue with works of
earthwork in cutting and also dismantling of old track
quantity of which was already exhausted. The claimant also
informed that its machinery , JCB 1 nos and 10 tractors were
idle due to no decision by the respondent.
Photocopy of letter dated
12.04.2013 is submitted as
Exhibit C/75, at pg. 184 of Vol.
CD-II of this SOC.

49
113. That the claimant followed the letter dated 12.04.2013 with
another letter dated 17.04.2013 requesting the respondent
to take decision immediately. The claimant reminded
respondent that no action was taken to approve
enhancement in earthwork in cutting and dismantling of
track quantities. The claimant informed that Complete Track
Renewal (CTR) work was not possible without dismantling of
old track and excavation of earth. The claimant also
informed that RA bills 17th , 18th, and escalation bill all were
not paid.
Photocopy of letter dated
17.04.2013 is submitted as
Exhibit C/76, at pg. 185 of Vol.
CD-II of this SOC.
114. That by e mail dated 18.04.2013, the respondent SE
confirmed the topic of discussions to be held in the meeting
between the Chief Engineer, the claimant and the Consultant
M/s RITES. The topic of discussions included Price
escalation, Hindrances, delay in processing of RA bills and
deduction of amounts from bills without proper reasons &
terms of agreement by Consultant RITES, besides other
issues. .
Photocopy of e-mail letter dated
18.04.2013 is submitted as
Exhibit C/77, at pg. 186 of Vol.
CD-II of this SOC.
115. That the claimant brought to the notice of the respondent
the persisting hindrances on the railway track and
surroundings with photographs at material time , as

50
 evidence. The claimant submitted individually photograph/s
of each and every hindrance through letters dated
22.04.2013 stating reasons as to why the work of track
renewal/renovation was not possible to be executed and or
withheld. The Claimant submits, in chart form, the various
letters all dated 22.04.2013, which are marked as Exhibits
and disclosed by the claimant in the present SOC, as
hereunder:

Sl.No Subject Exhibit At pg. of

. No. Vol. CD-II
of SOC

1 Hindrance in Line No. 2 C/78 Pg. 187

2 Hindrance in Line No. 4 C/79 Pg. 191

3 Hindrance in Line No. 5 C/80 Pg. 194

4 Hindrance in Line No. 7 C/81 Pg. 197

5 Hindrance in Line No. 8 C/82 Pg. 201

6 Hindrance in Line No. 9 C/83 Pg. 205

7 Hindrance in Line No. C/84 Pg. 207

10
8 Hindrance in Line No. C/85 Pg. 209
11
9 Hindrance in Line No. C/86 Pg. 212

12

10 Hindrance in Line No. C/87 Pg. 214

14

116. That the contents and photographs of the hindrances clearly

bring out the hidden intention of the respondent which they
did not disclose either in the tender documents and or
51
 informed the claimant after the award of work to the
claimant. The respondent had misrepresented in the tender
documents that all site was available for work, whereas the
respondent had failed to remove the hindrances /
obstructions even after prolongation of the contract period
by nearly 30 months The non action on the part of the
respondent completely shattered the entire calculations and
planning of the claimant basing which it had offered its most
competitive rates. The respondent had also deleted the
clause for providing escalation for work executed beyond
stipulated period mentioned in the contract making known .
117. That the Consultant by letter dated 23.04.2013 submitted its
comments to the reasons of delay as mentioned by the
claimant in the time extension application dated 26.05.2012
( Ref: C/ ). It is apparent from the contents of the aforesaid
letter that the consultant had already recommended grant of
the time extension for completion of the works but the same
was pending before the respondent. The Consultant had
clearly stated the no. of days of delay, some of which were
still continuing even on 23.04.2013.
Photocopy of letter dated
23.04.2013 is submitted as
Exhibit C/88, at pg. 216 of Vol.
CD-II of this SOC.
118. That the above said further fortifies the fact that the
respondent were in Breach of the Contract. The respondent
was bound to give approval and grant time extension within
days of submission of application for time extension by the
claimant, Clause 5 of GCC, Exhibit C/ , pg , Vol. CD-III of

52
 SOC. In the event, there was no valid agreement in
existence beyond 31.05.2012. The respondent was merely
trying to cover up its lapses and failures and finding ways to
topple the responsibility of non completion of the works on
the claimant.
119. That the respondent by letter dated 25.04.2013 informed
the claimant that all the OHE masts fouling the alignment of
railway tracks in old coal handling yard were removed, thus
admitting presence of such hindrances till that material
time. The respondent also informed that the balance
hindrances due to boundary wall , security cabin, inspection
tower and loco shed were to be removed by the claimant as
per order dated 18.03.2013 and that in view, all hindrances
in line nos 8,9,10,11,12,13,& 14 were removed. Thus there
was clear admission by the respondent that the
prolongation of the period of contract beyond 8
months was attributable to the respondent.
Photocopy of letter dated
25.04.2013 is submitted as
Exhibit C/89, at pg. 218 of Vol.
CD-II of this SOC.
120. That the claimant by letter dated 26.04.2013 referred to the
meeting held on 20th April 2013 at Lucknow , wherein the
issue of escalation was brought by the claimant and the
respondent had asked the claimant to represent the same
for favourable consideration and approval. In respect the
claimant further brought out the fact that the Clause 10CC of
GCC provide for payment of escalation if the time is
extended beyond stipulated time given in the contract. The

53
 aforesaid clause was part of the GCC in the agreement
terms and conditions, whereas other clauses 10CA and 10CA
in regard to escalation were completely deleted from the
agreement. It was assured that the presence of Clause 10CC
in the agreement document mean that the clause would
become operative on expiry of period of 8 months , i.e if
project was delayed due to the owner. The claimant also
brought out the tremendous escalation in the market for
various inputs materials like steel , cement, Diesel, Labour
and which increase varied from 22% to 55 % approximately.
The claimant also made known that the site situation was
the same and still all site was not available for work. The
claimant therefore requested the respondent to compensate
the losses incurred by the claimant and also take judicious
view and release the escalation payment , based on the
clause 10CC of GCC.
Photocopy of letter dated
25.04.2013 is submitted as
Exhibit C/90, at pg. 219 of Vol.
CD-II of this SOC.
121. That the claimant by letter dated 30.04.2013 once again
informed the respondent that the hindrances were still
present in line nos 12, 13, 2, 7, and 4. The claimant
requested respondent for removal of the same immediately.
The claimant also pointed out that the order/approval for
further enhanced quantity for earthwork in cutting was not
provided and due to which work was held up since February
2013. The methodology for construction of 4 nos bridges, as
submitted by the claimant in January 2013 after the scope of

54
 work of bridges was changed, was not yet approved. It was
also informed to respondent that work was held up due to
non payment of RA bills/escalation bills causing cash flow
problems in the project, arbitrary hold up of amounts from
RA bills. The claimant also drew the attention of the
respondent that the validity of agreement had expired on
31.05.2012 and no time extension was provided thereafter
till date. The claimant requested for immediate necessary
action.
Photocopy of letter dated
30.04.2013 is submitted as
Exhibit C/91, at pg. 221 of Vol.
CD-II of this SOC.
122. That the respondent E.E by letter dated 10.05.2013 advised
the claimant to submit the Network Time and progress chart
for each remaining activity and also to give ‘No Claim
Certificate’ so that the time extension case could be
pursued for approval from HQ , Lucknow. The validity of the
agreement had already expired on 31.05.2012 and after one
year silence the respondent was showing concern for
approval of time extension for completion of the works.
There was no valid agreement in existence beyond
31.05.2012 and hence the respondent and or Consultant had
no legal authority to demand performance of work from the
claimant. The respondent’s demand for submission of a NO
CLAIM CERTIFICATE for granting time extension was also
beyond the terms and conditions of the instant contract
agreement.

55
 Photocopy of letter dated
10.05.2013 is submitted as
Exhibit C/92, at pg. 223 of Vol.
CD-II of this SOC.
123. That on receipt of the record note of discussions held in
meeting dated 20.04.2013 through email , the claimant by
letter dated 16.05.2013 pointed out the anomalies in the
record note and requested for rectification. The claimant
made known that without the corrections the record note
was not acceptable to the claimant.
Photocopy of letter dated
16.05.2013 is submitted as
Exhibit C/93, at pg. 224 of Vol.
CD-II of this SOC.
124. That even till May 2013, after passage of nearly 12 months ,
the respondent had not regularized the instant contract by
granting time extension to the contract which had expired
on 31.05.2012. As such at that instant time there was no
contract in existence between the claimant and the
respondent. The claimant continued with the works in good
faith on the hope that all issues will be resolved by the
respondent in the interest of the project and the claimant
will be able to complete the balance works.
125. That the respondents could remove the obstructions in
completion of line nos. 9, 10, 11, 12, 13 & 14 caused by
existing OHE masts only in May 2013 after nearly three
years of start of works. As soon as hindrances were
removed, the claimant completed the work in line no 8 and
handed over the same to the respondent and usage of the

56
same was started by UPRVUNL. The respondent however did
not take action to approve the enhancement in quantities for
earthwork in cutting and also dismantling of old tracks due
to which the work of line nos. 7 , 26, and 27 was at stand
still. The respondent also failed to make payment of the RA
bills of the claimant in a reasonable time inspite of repeated
reminders leading to complete disturbance in cash flow at
work site. The respondent made wrongful deductions from
the RA bills of the claimant with holding the amounts on
arbitrary grounds although the respondents by their non
actions had themselves delayed the execution/completion of
the works in stipulated time and were thus in breach of the
contract. The claimant by its letter dated 03.06.2013 once
again brought out all the above to the notice of the
respondent. The claimant also informed that demand
of No Claim Certificate for grant of time extension
beyond 31.05.2012 was clear case of coercion after
huge amounts payable to the claimant were held up
by the respondent. The claimant also informed that non
issuance of track fit certificate when the lines, after
renewal /renovation completed by the claimant, were in
regular use for movement of railway rakes by the
respondent, was a ploy to unnecessarily harass and
pressurize the claimant to accept the dictates of the
Respondent/Consultant and forego all claims of losses
incurred by the claimant.
Photocopy of letter dated
03.06.2013 is submitted as

57
 Exhibit C/94, at pg. 226 of Vol.
CD-II of this SOC.
126. That the claimant by letter dated 20.06.2013 once again
requested the respondent to grant extension of time without
resorting to coercion , which is not only beyond the terms
and conditions of the contract , but also against the Law of
the Land.
Photocopy of letter dated
20.06.2013 is submitted as
Exhibit C/95, at pg. 229 of Vol.
CD-II of this SOC.
127. That by letter dated 26.06.2013 , the claimant once again
pointed out that the anomalies in the record notes of
meeting held on 20.04.2013 were still not amended. That
further the Consultant M/s RITES Ltd. were the authorized
link between the railway department and the respondent
and any interaction required involving the concerned railway
department was to be done by the Consultant. The claimant
also once again reminded and requested the respondent for
release of its RA bill, including held up amounts and also
grant of extension of time.
Photocopy of letter dated
26.06.2013 is submitted as
Exhibit C/96, at pg. 230 of Vol.
CD-II of this SOC.
128. That the claimant submitted to the respondent RA bill no.19
by its letter dated 20.07.2013.
Photocopy of letter dated
20.07.2013 is submitted as

58
 Exhibit C/97, at pg. 231 of Vol.
CD-II of this SOC.
129. That the claimant by letter dated 26.07.2013 requested the
respondent to regularize the contract and release all
payments instead of coercing the claimant and causing
mental agony.
Photocopy of letter dated
26.07.2013 is submitted as
Exhibit C/98, at pg. 232 of Vol.
CD-II of this SOC.
130. That a meeting was held between UPRVUNL Ltd., RITES Ltd.
and the claimant on 18.07.2013 , wherein it was agreed by
all that all works will be completed by 30.11.2013 and that
accordingly, UPRVUNL will regularize the contract and
provide time extension till 30.11.2013. It was also agreed
that complete site will be provided by 10.08.2013 and also
all payment till 19th RA bill will be released. The claimant by
letter dated 01.08.2013 confirmed and recorded the
discussions held in the meeting held on 18.07.2013.
Photocopy of letter dated
01.08.2013 is submitted as
Exhibit C/99, at pg. 233 of Vol.
CD-II of this SOC.
131. That in reply to respondent E.E letter dated 05.08.2013 , the
claimant by letter dated 18.08.2013 refuted all the charges
made against it for the non completion of the works under
the contract. The claimant once again submitted that all site
was not handed over hindrance free even after 39 months of
award of work. The claimant also brought out to the notice

59
of the respondent provision of Clause 5 of Conditions of
Contract , Section -7 , pg 143 of the agreement wherein it is
given that
“ The execution of work shall commence from such
time period as mentioned in the letter of award or
from the date of handing over of the site which ever
is later”.
The respondent had failed to handover complete site and
therefore was bound to provide time extension to the
contract for completion of the works. The claimant also
submitted that the representation for application of price
variation in the instant contract was already made as
discussed in high level meeting on 20.04.2013, but there
was no communication till date in regard to any action taken
in the matter by the respondent. It was also submitted by
the claimant that calibration of In-motion Weigh Bridge by
Railways could be taken up by Consultant RITES only. The
claimant also brought out that non passing of RA bills and or
holding payments for non extension of period of contract
was violation of agreed contract terms on the part of the
respondent. The demand of a no claim certificate by
respondent in lieu of time extension was beyond the terms
of the contract and thus arbitrary and legally not valid. In
view the claimant as per discussions held in meeting dated
18.07.2013 demanded the following:
i). Payment of RA bills 19th and 20th immediately.
ii). Immediate Grant of time extension upto 31.12.2013, to
be reviewed later if need arise.
iii). Hand over all balance site clear of hindrances.

60
 iv). Approve all pending quantity variation.
v). Release the illegally withheld amounts of Rs.
1,26,73,023/-
vi). Fresh consideration of escalation payment by UPRVUNL
as decided in meeting dated 20.04.2013.
The claimant also suggested for a joint high level meeting
with preparation of a joint status report including fresh
photographs showing present site condition in order to
prepare actual action plan for completion of works of the
project. The claimant also requested the respondent to
refrain from enforcing recovery/deductions as per
stipulations mentioned in Schedule ‘ F ’ as the works were
not possible to be completed within stipulated contract
period due to respondents own lapses and failures.
Photocopy of letter dated
18.08.2013 is submitted as
Exhibit C/100, at pg. 234 of Vol.
CD-II of this SOC.
132. That the claimant sought extension of time upto 31.01.2014
based on the discussion in meeting with respondent Chief
Engineer, Civil and others by application dated 24.08.2013
stating various reasons which were totally not attributable to
the claimant. The claimant requested grant of
extension upto 31.01.2014 with revision of contract
rates and with payment of upto date escalation. That
it will be seen that the reasons of delay were mostly
attributable to the respondent who had failed to fulfill the
primary obligations of handing over hindrance free site even
after more than 39 months of commencement of work. A

61
 programme of works ( Bar Chart ) with specific conditions
was attached by the claimant with the application of time
extension.
Photocopy of letter dated
24.08.2013 is submitted as
Exhibit C/101, at pg. 239 of Vol.
CD-II of this SOC.
133. That the respondent by letter dated 05.09.2013
communicated grant of time extension upto 31.01.2014.
Photocopy of letter dated
05.09.2013 is submitted as
Exhibit C/102, at pg. 242 of Vol.
CD-II of this SOC.
134. That the respondent had thus acknowledged and accepted
the conditions as specifically laid down by the claimant for
completion of the works within 31.01.2014 and were
therefore immediate necessary actions were expected on
the part of the respondent , so that execution of work could
be ensured as per bar chart.
135. That in response to respondent letter dated 22.10.2013 the
claimant by letter dated 30.10.2013 informed the
respondent that it was efficiently mobilized at site and in
fact were not able to use the deployed resources effectively
due to non availability of fronts. The claimant also informed
that its huge payments, held up for extension of time, were
not released causing cash flow problem. The approval of
enhancement of quantity of earthwork in excavation was still
not sanctioned due to which the work in line nos.26 & 27 are

62
 held up. The status of hindrances at site were the same and
no action was taken by the respondent for their removal.
Photocopy of letter dated
30.10.2013 is submitted as
Exhibit C/103, at pg. 243 of Vol.
CD-II of this SOC.
136. That the claimant by letter dated 19.11.2013 informed the
completion of work of line no.14 and that the respondent
could use the same for movement of wagons.
Photocopy of letter dated
19.11.2013 is submitted as
Exhibit C/104, at pg. 245 of Vol.
CD-II of this SOC.
137. That the claimant once again by letter dated 19.11.2013
brought to the notice of respondent that non release of
payments was adversely affecting the progress of the works
and that the claimant could not be expected to perform
without timely payment of bills for the executed works and
proper cash flow.
Photocopy of letter dated
19.11.2013 is submitted as
Exhibit C/105, at pg. 246 of Vol.
CD-II of this SOC.
138. That the claimant in reply to respondent EE letter
no.558/CCED-II/MPL dated 13.11.2013, by its letter dated
20.11.2013 totally denied the allegations levelled by the
respondent EE. The contract between the respondent and
the claimant involved fulfillment reciprocal obligations. The
respondent’s obligations were primary and without

63
 fulfillment of which the performance of the claimant was not
possible. The respondent therefore could not expect the
claimant to fulfill its obligations without the respondent
themselves first fulfilling contractual obligations on their
part. The claimant also referred to the record notes of
meeting held on 23.08.2013 wherein a time frame for
processing of the running bill of the claimant was agreed but
although the 19th RA bill was submitted in July 2013 but even
till date the same was not paid to the claimant, besides also
the amount of 126.00 lakhs withheld from the RA bills were
not released as agreed in the meeting. The hindrances were
still not removed although it was agreed that all the balance
site will be cleared and handed over to the claimant. The
claimant also drew the attention of the respondent to the
joint signatures on the handing over note dated 04.03.2013
in regard to In-motion weigh bridge. The claimant further
requested fulfillment of contractual obligation by the
respondent at the earliest so that the claimant was able to
complete the balance work and mitigate its losses.
Photocopy of letter dated
20.11.2013 is submitted as
Exhibit C/106, at pg. 247 of Vol.
CD-II of this SOC.
139. That the claimant by letter dated 30.11.2013 once again
brought out the various problems it was facing in execution
of balance works under the agreement, as no action was
being taken by the respondent to solve the issues as pointed
out time and again by the claimant and due to which the
claimant was unable to obtain desired productivity from its

64
 deployed resources , which in consequence were causing
huge losses to the claimant.
Photocopy of letter dated
30.11.2013 is submitted as
Exhibit C/107, at pg. 249 of Vol.
CD-II of this SOC.
140. That during the visit by respondent officers on 30.11.2013 it
was decided to freeze the scope of work of the claimant for
various reasons. The work of line nos.1, 2, 4 were deleted
from scope. This decision was made after nearly 42 months
from date of LOA and after having made the claimant to wait
for prolonged period in waiting for removing the hindrances
therein. It was also observed that as per the new ESP
(Engineering Scale Plan) it was required to change the
alignment of line no.25 from the existing alignment, but
which was not possible. As such it was decided that line
no.25 was to be made only upto the place where abandoned
engine was kept and that line no.7 was to be completely
laid. The chainage of the turnouts of line no 25 was to be
shifted accordingly. The minutes of changes made were
conveyed by the respondent to the consultant by letter
dated 30.11.2013 for further instructions accordingly by the
consultant to the claimant.
Photocopy of letter dated
30.11.2013 is submitted as
Exhibit C/108, at pg. 251 of Vol. II
of this SOC.
141. That the claimant by letter dated 05.12.2013 reminded the
respondent that as agreed during the meeting in Lucknow in

65
 August 2013, the payment of 19 th RA bill was to be made
within September 2013 but the same was not paid and due
to which tremendous cash flow problem was created at work
site affecting the works. The claimant also requested the
respondent to compensate the claimant for the losses in lieu
of idleness of resources of men and machinery, extra costs
due to long leads and handing over of site in parts, loss of
profit and overheads.
Photocopy of letter dated
05.12.2013 is submitted as
Exhibit C/109, at pg. 253 of Vol.
CD-II of this SOC.
142. That the claimant by letter dated 28.12.2013 once again
submitted the various hindrances still persisted at material
time at work site of line no.2, line no.4 and line no.7 and
which were not removed. The claimant also brought to the
notice that it had already exceeded by 7000 cum the
quantity of earthwork in cutting sanctioned as extra item in
scope of the claimant contract after approval of the same
was provided in principal in the meeting dated 20.04.2013 &
23.08.2013 , but even then no payment was made till date.
The enhancement in further quantities of earthwork in
cutting was required for execution of work in line
nos.2,4,7,26 and 27 as such the claimant requested the
respondent to sanction necessary variation in the extra item
quantity and also clear all the hindrances and make
payment of due amounts, besides compensating the
claimant for all the losses incurred by the claimant

66
 accounting to various heads due to lapses and failure on the
part of the respondent.
Photocopy of letter dated
28.12.2013 is submitted as
Exhibit C/110, at pg. 255 of Vol.
CD-II of this SOC.
143. That the claimant by follow up letter dated 31.12.2013 once
again reiterated its submission made in earlier letters. The
claimant further submitted that the agreed contract
conditions stipulated 75% payment of the bill amount within
3 working days and the balance payment within 15 days of
submission of bill. That claimant had entered into the
contract with the respondent with the aforesaid
understanding/terms of the contract. As such there was
fundamental breach of contract on the part of the
respondent and hence the respondent was liable to pay the
claimant compensation and damages with interest.
Photocopy of letter dated
31.12.2013 is submitted as
Exhibit C/111, at pg. 259 of Vol.
CD-II of this SOC.
144. That the claimant submitted to the respondent RA bill no.20
amounting to Rs.55,41,332/- by its letter dated 13.01.2014.
Photocopy of letter dated
13.01.2014 is submitted as
Exhibit C/112, at pg. 261 of Vol.
CD-II of this SOC.
145. That in continuation of its various earlier letters, the
claimant by letter dated 27.01.2014 once again submitted

67
 that the project was suffering tremendous cash crunch due
to non payment of the 19th RA bill submitted on 22.07.2013
and also due to non contractual deduction from the RA bills.
Meanwhile the 20th RA bill was also submitted on
13.01.2014. The claimant notified the respondent that
interest would have to be paid by the respondent as the
claimant was also having to pay interest on the credit
facilitated by its bankers.
Photocopy of letter dated
27.01.2014 is submitted as
Exhibit C/113, at pg. 262 of Vol. II
of this SOC.
146. That the delay in payment by respondent caused multifold
losses to the claimant. The claimant had to bear the
expenditure on the credit facility extended by its bank and
also the claimant was forced to incur loss due to increase on
cost of the execution of the works delayed due to cash flow
problem at work site arising .
147. That the consultant M/s RITES Ltd. by its letter dated
03.03.2014 insisted procurement of steel section for
construction of loco shed only from SAIL. The claimant was
informed that materials brought from other sources would
not be permissible at site. This was again beyond the agreed
conditions of contract.
Photocopy of letter dated
03.03.2014 is submitted as
Exhibit C/114, at pg. 263 of Vol. II
of this SOC.

68
148. That the claimant by letter dated 11.03.2014 submitted that
the In-motion weigh bridge was constantly in use since
11.12.2012 when the weigh bridge was certified by the
consultant and physically handed over for use of
respondent. The claimant further submitted that regular
maintenance of the weigh bridge was not in scope of the
claimant contract.
Photocopy of letter dated
11.03.2014 is submitted as
Exhibit C/115, at pg. 264 of Vol. II
of this SOC.
149. That the claimant informed to the respondent by letter dated
07.04.2014 that SAIL had informed that all sections of
structural steel as required for loco shed was not available
with them. As such the claimant requested the respondent
to allow use of steel manufactured by other integrated steel
plant in the interest of the project.
Photocopy of letter dated
07.04.2014 is submitted as
Exhibit C/116, at pg. 266 of Vol. II
of this SOC.
150. That the claimant by its letter dated 15.04.2014 reiterated
that it was put to various losses due to the non fulfillment of
contractual obligations by the respondent. The payment of
19th RA bill was made by the respondent after nearly six
months of its submission. No decision on acceptability of
steel manufactured by companies other than SAIL has been
provided till date. The approval/sanction of extra quantity of
earthwork in excavation already executed by the claimant

69
 since March 2013 has not been communicated till date and
as such further works of earthwork in cutting necessary in
line no.26 & 27 could not be taken up by the claimant.
Photocopy of letter dated
15.04.2014 is submitted as
Exhibit C/117, at pg. 268 of Vol. II
of this SOC.
151. That the respondent Executive Engineer, referring to
respondent SE office memorandum no.2921A/ExCC/OM/ MPL
dated 07.12.2013, by its letter dated 25.04.2014
communicated to the consultant M/s RITES Ltd. for making
payment to the claimant for the extra work done by the
claimant in regard to earthwork in cutting and dismantling of
old existing track. The respondent EE also forwarded copy of
letter dated 25.04.2014 to the claimant requesting for
expediting execution of the extra quantity work by the
claimant.
Photocopy of letter dated
25.04.2014 is submitted as
Exhibit C/118, at pg. 270 of Vol. II
of this SOC.
152. That a bar chart showing the tentative programme for
completion of work upto 30.08.2014 was submitted by the
claimant by its letter dated 02.05.2014. The bar chart
however was conditional and or subject to compliance of
certain conditions immediately by the respondent.
Photocopy of letter dated
02.05.2014 is submitted as

70
 Exhibit C/119, at pg. 272 of Vol. II
of this SOC.
153. That by another letter dated 02.05.2014 the claimant stating
various reasons of delay submitted its application for time
extension upto 30.08.2014 for completion of the works with
revision of rates and with revision of rates and with payment
of upto date escalation.
Photocopy of letter dated
02.05.2014 is submitted as
Exhibit C/120, at pg. 275 of Vol.
CD-II of this SOC.
154. That the claimant by its letter 24.06.2014 informed the
respondent that it had taken positive action after the
meeting held on 29.04.2014 in the interest of early
completion of the project. The action taken by the claimant
were as under :-
i) The structural steel for loco shed was procured and
brought to site
ii) All balance turnout/switches including fittings were
brought to site
iii) The fabrication work at loco shed was started.
iv) Earthwork in cutting in line no.26 & 27 was completed.
v) Balance track linking work was in progress.
vi) The fabrication of steel door and window for S&T
building was completed.
vii) Track linking work of line no.26 & 27 was also in
progress.
viii) Laying of turnout in line no.8 was being done.

71
 ix) Fabrication of rolling shutter for Diesel Generator (DG)
room was completed.
x) Septic tank for service building was under construction.
xi) All the bank guarantees, insurance etc. were renewed.
As such the claimant requested the respondent also to take
positive action and release all due payment within 7 days so
that work was not affected any further.
Photocopy of letter dated
24.06.2014 is submitted as
Exhibit C/121, at pg. 277 of Vol.
CD-II of this SOC.
155. That the respondent Chief Engineer (CE) by its letter dated
26.06.2014 asked the Chief General Manager (CGM), Project,
M/s RITES Ltd. Lucknow to look into the matter as to why
RITES officials at site had not processed the 20 th RA bill of
the claimant till date and hence requested CGM intervention
in the matter so that payment could be released to the
claimant before 30.06.2014. The respondent CE impressed
that delay in payment would hamper the progress of work.
Photocopy of letter dated
26.06.2014 is submitted as
Exhibit C/122, at pg. 279 of Vol. II
of this SOC.
156. That the changes in chainages of turnout of line no 7 and
25 , was not decided/finalized by the respondent early. The
rates of precast RCC box bridges decided to be constructed
for the four nos of bridges outside the plant boundary was
not available in the BOQ of the claimant agreement and not
in DSR 2007. Non schedule rate for the same was required

72
 to be sanction. The specification for high mast tower was not
provided to the claimant. The fixing arrangement for the
level crossing check rails over turnout portion at Ch. 2290
was also not provided. As such it was apparent that neither
the respondent and nor the Consultant were taking quick
action and deciding the changes /rates of new item works
due to which the claimant was unable to take up such
balance works. The claimant by its letter dated 12.07.2014
impressed upon the respondent for quick decision on the
aforesaid issues.
Photocopy of letter dated
12.07.2014 is submitted as
Exhibit C/123, at pg. 280 of Vol. II
of this SOC.
157. That the respondent by letter dated 14.07.2014 advised the
Consultant RITES Ltd. to take immediate action in regard to
the issues raised by the claimant in its letter dated
12.07.2014 ( C/ ). The claimant had also raised the issue of
inordinate delay in processing and payment of the 20 th RA
bill. The respondent confirmed that the excessive delay in
process of the bill hampered the progress of the works. The
respondent was thus trying to shift its responsibility of
fulfilling contractual obligations on the Consultant. The
respondent was in Fundamental Breach of the Contract and
thus liable to pay compensation and damages to the
claimant.
Photocopy of letter dated
14.07.2014 is submitted as

73
 Exhibit C/124, at pg. 282 of Vol. II
of this SOC.
158. That by letter dated 23.07.2014 the claimant informed the
respondent that work of line no. 27 was completed and the
track was ready for trial run and wagon movement.
Photocopy of letter dated
23.07.2014 is submitted as
Exhibit C/125, at pg. 284 of Vol. II
of this SOC.
159. That it is can be conclusively said that the respondent gave
delayed decision in regard to the execution of works not
originally shown and or mentioned in construction drawings.
The respondent by their letter dated 02.08.2014 conveyed
the Consultant works not shown in construction drawings but
to be essentially executed in works of Service and S&T
building and therefore advised for further instructions for
execution of the same to the claimant.
Photocopy of letter dated
02.08.2014 is submitted as
Exhibit C/126, at pg. 285 of Vol. II
of this SOC.
160. That the claimant submitted the application for extension of
time for completion of the balance works . The claimant by
letter dated 07.08.2014 sought time extension upto
31.12.2014 with revision of rates and payment of escalation.
The claimant stated the reasons for delay in completion of
the works and which were all not attributable to it and or
beyond its control. The bar chart for completion of the

74
 balance work was also submitted by separate letter dated
27.08.2014 also with certain conditions as note.
Photocopy of letters dated
07.08.2014 and 27.08.2014 is
submitted as Exhibit C/127 and
C/128, at pgs. 286 & 288
respectively of Vol. II of this SOC.
161. That the calibration of the In-motion Weigh Bridge was done
by M/s Ricelake weighing system India Ltd. New Delhi in
presence of officials of the Consultant and the Respondent
and there after a joint report was prepared and signed by all
present personals.
Photocopy of the report dated
03.09.2014 including test results
is submitted as Exhibit C/129, at
pg. 291 of Vol. II of this SOC.
162. That Claimant submitted the 21st RA bill amounting to Rs.
58,79,195/- to the respondent by letter dated 08.09.2014.
The respondent thereafter by letter dated 16.09.2014
forwarded the said bill to the consultant and advised them
for early process and submission to its office.
Photocopy of letters dated
08.09.2014 & 16.09.2014 is
submitted as Exhibit C/130 &
C/131 respectively, at pgs. 295 &
296 of Vol. II of this SOC.
163. That as the payment of the 21 st RA bill was not made, the
claimant by letter dated 13.10.2014 once again requested
the respondent to release the payment before Diwali festival

75
 so that there is no disturbance created by the labourers and
vendors. The claimant also informed the respondent that the
delay in payment was hampering the work and also leading
to losses to the claimant.
Photocopy of letter dated
13.10.2014 is submitted as
Exhibit C/132, at pg. 297 of Vol. II
of this SOC
164. That as such there is admission on the part of the
respondent that the delay in payment of the bills to the
claimant was a regular feature. The bills were paid much
beyond the time of the agreed terms in the contract, and
which had not only affected the progress/completion of the
works but also caused heavy losses to the claimant.
165. That the claimant by its letter dated 14.10.2014 again
brought to the notice of the respondent that huge amounts
held back from the running bills of the claimant were still not
released. The claimant submitted the details of the amounts
withheld by respondent and which amounted to Rs.
57,43,014/-. The amounts withheld were against the
contract terms and thus not legal. The claimant made it
known that the respondent had failed to fulfill the
contractual obligations as promised , reference clause 1.5 of
Section – 1 ( NIT), pg. 54 of agreement. The respondent had
also failed to provide complete drawings. The payment of
practically all running bills was much delayed causing huge
losses to the claimant. The payment was never released as
per the agreed conditions of contract, as per Clause 7 of
Section -8 of the contract agreement, which was the basis of

76
 the offer given by the claimant. In the circumstances , the
claimant had to arrange funds from its banker and or other
sources and thus pay interest. As such the respondent was
liable to compensate the claimant with all such losses
incurred by the claimant by way of interest paid to its bank
for the credit amounts /overdraft facility provided to it.
166. That the claimant in the same letter dated 14.10.2014 made
it known once again that the respondent would have to
revise the rates @ 10% per period of contract of 8 months
after the initial stipulated completion period of eight months.
Photocopy of letter dated
14.10.2014 is submitted as
Exhibit C/133, at pg. 298 of Vol. II
of this SOC
167. That the RA bill was forwarded by the respondent to the
Consultant by letter dated 15.09.2014 , and the delay was at
the end of the Consultant who had not taken any action
inspite of respondents advise for early processing of the bill.
Therefore the respondent by letter dated 30.10.2014 again
advised the respondent to take immediate action , and also
made it known that if the bill was not processed within a
week action would be taken as per the contractual clauses
for intentionally delaying the work.
Photocopy of letter dated
30.10.2014 is submitted as
Exhibit C/134, at pg. 300 of Vol. II
of this SOC

77
168. That the respondent by office memorandum dated
05.11.2014 communicated to the claimant the extension of
time granted from 01.02.2014 till 31.12.2014.
Photocopy of letter dated
05.11.2014 is submitted as
Exhibit C/135, at pg. 301 of Vol. II
of this SOC
169. That the claimant once again by letter dated 05.11.2014
brought to the notice of the respondent that neither the
payment of its 21st RA bill was released and nor the amount
of Rs. 5743014/- withheld from RA bills were released. Non
release of payment not only created fund crisis at work site
but also caused losses to the claimant.
Photocopy of letter dated
05.11.2014 is submitted as
Exhibit C/136, at pg. 302 of Vol. II
of this SOC
170. That inspite of repeated reminders the payment of the
claimant were not released. The respondent therefore
violated the provisions of Clause 7 , Section – 8 of the
agreement ,( Exhibit C/ ) and hence was in Breach of
the Contract.
171. That the claimant therefore once again by letter dated
03.12.2014 informed the respondent that work was
hampering due to non action and payment by the
respondent and that the respondent would be liable to
compensate the claimant for all the losses sustained by the
claimant towards extra overheads, loss of profit, extra cost
of insurance/bank commission, loss of business, interest on

78
 delayed payment etc. The claimant also made it known that
the respondent would have to revise the prices for all works
executed after the initial contractual date of completion i.e
30.01.2011. The claimant also informed the respondent to
provide rates for precast box bridges so that the work could
be taken up and completed as the same was not part of the
original contract. The respondent was also asked to provide
the specifications of the High Mast Light.
Photocopy of letter dated
03.12.2014 is submitted as
Exhibit C/137, at pg. 303 of Vol. II
of this SOC
172. That the claimant arranged the extension of validity of the
bank guarantee no. 45/13 dated 10.09.2013 for Rs.
93,40,700/- by Canara Bank , Ranchi, for a further period
upto 09.03.2015.
Photocopy of letter of
confirmation by bank dated
05.12.2014 is submitted as
Exhibit C/138, at pg. 305 of Vol. II
of this SOC
173. That the respondent SE by letter dated 19.12.2014 listed the
works of CTR balance ( points raised by railway department)
and requested the claimant for early completion in the
interest of safety of the track. The listed points were:
i). Construction of 4 nos bridges on main track not done.
ii). Check rails not provided on all level crossings.
iii). Points and turnout /crossing details not painted at site
and also curve register not maintained.

79
 iv). Fitness of all tracks not obtained from railway
department of the CTR work/Switch renewal etc.
Photocopy of letter dated
19.12.2014 is submitted as
Exhibit C/139, at pg. 307 of Vol.
II of this SOC
.
174. That the bonafide of the claimant is apparent from the fact
that it immediately arranged P.Way labours and informed
the respondent by letter dated 24.12.2014 action taken by it
in the interest of completion and also safety of the work.
Photocopy of letters dated
24.12.2014 is submitted as
Exhibit C/140, at pg. 308 of Vol. II
of this SOC
175. That the claimant by its letter dated 25.12.2014 parawise
replied to respondent SE letter dated 19.12.2014 ( C/
above), and which was self explanatory. The claimant
informed that no rates was available in DSR 2007 for precast
structures, hence new rates were required to be sanctioned
for four nos bridge RCC box bridges, the fixing
arrangements of crossing check rails were not provided by
respondent till date, all registers including curve details were
maintained and available with Consultant, the tracks were in
use by UPRVUNL after completion since last three years and
hence deemed to be fit. Non issue of certificate of fitness,
but using the track over the years was merely a tool for
coercion on the claimant.

80
 Photocopy of letters dated
25.12.2014 is submitted as
Exhibit C/141, at pg. 310 of Vol. II
of this SOC.
176. That by letter dated 18.01.2015 , the claimant informed the
respondent about the completion of work of Rampur level
crossing works and that the same was taken over after
checking by the respondent. The claimant once again
requested for payment of the 21st RA bill.
Photocopy of letters dated
18.01.2015 is submitted as
Exhibit C/142, at pg. 312 of Vol. II
of this SOC
177. That the claimant submitted the application for extension of
time for completion by letter dated 24.01.2015 and sought
time extension upto 30.04.2015 with revision of rates and
payment of escalation. The claimant stated the reasons for
delay in completion of the works and which were all not
attributable to it and or beyond its control.
Photocopy of letter dated
24.01.2015 is submitted as
Exhibit C/143, at pg. 313
respectively of Vol. II of this SOC.
178. That the respondent by letter dated 31.01.2015 intimated to
the Consultant that much time was being taken by the
consultant to process the running bills and due to which
works had hampered. The respondent gave a chart showing
the details of delay by the consultant. The respondent
admitted that the delay in the processing of bills had

81
 affected the progress of works. The respondent called for
furnishing reply for the delay from the concerned authority
of consultant.
Photocopy of letter dated
31.01.2015 is submitted as
Exhibit C/144, at pg. 315
respectively of Vol. II of this SOC.
179. That the claimant by its letter dated 27.02.2015 informed
the respondent that the 21st RA bill was not paid even after
passing of 6 months , and that delay in payment of bills had
been a regular practice due to which the claimant suffered
heavy losses which will have to be compensated with
interest by the respondent.
Photocopy of letter dated
27.02.2015 is submitted as
Exhibit C/145, at pg. 316
respectively of Vol. II of this SOC.
180. That a meeting was called on 22.04.2015 in regard to the
issues raised by the claimant and completion of the balance
works which was attended by the respondent officials SE &
EE, Consultant representative and claimants representative.
In the meeting the consultant admitted that there was delay
in processing of 17th to 21st RA bills due to certain reasons.
That certain decision was taken in the meeting to ensure
that there was no delay in processing and payment of bills in
future. The consultant representative submitted that the
amount of withheld money was not Rs.57.43 lakhs, as
projected by the claimant and that release of the same can
only be made after the validity of performance bank

82
 guarantee done by the claimant. Further in the meeting it
was submitted by the respondent that the rates in the
instant contract were fixed and there was no provision for
providing price escalation. There was no commitment given
by the claimant for start of the works and completion of the
same. The minutes of the meeting (MOM) held on
22.04.2015 was communicated to the claimant by letter
dated 28.04.2015.
Photocopy of letter dated
28.04.2015 enclosing MOM is
submitted as Exhibit C/146, at
pg. 318 of Vol. II of this SOC.
181. That a meeting was again conducted with regards to
completion of remaining works on 12.05.2015 at Shakti
Bhawan, Lucknow in which high officials of the respondent,
consultant were present including one of the director on
behalf of the claimant. In the aforesaid meeting there was
discussion in regard to balance works, release of withheld
money on various accounts, extension of performance bank
guarantee. However there was no firm commitment given by
the claimant to start and complete of the balance works.
Photocopy of the meeting held
on 12.05.2015 is submitted as
Exhibit C/147, at pg. 320
respectively of Vol. II of this SOC.
182. That the consultant by letter dated 22.05.2015
communicated to the claimant the balance work which
required to be completed under the claimant agreement.

83
 Photocopy of letter dated
22.05.2015 is submitted as
Exhibit C/148, at pg. 321 of Vol. II
of this SOC.
183. That the respondent SE by letter dated 06.06.2015, referring
its office various letters stated that the works were kept
suspended by the claimant for the last 3 months without any
reasonable cause and that if action to proceed with the work
was not taken within 7 days, the respondent SE will be
obliged to recommend to the competent authority for
determination of the contract on account of default on the
part of the claimant in discharging of contractual obligation
and in the event of such determination of the contract the
earnest money, security deposit would be forfeited in terms
of clause 3(ii) of the contract.
Photocopy of letter dated
06.06.2015 is submitted as
Exhibit C/149, at pg. 322 of Vol. II
of this SOC.
184. That in reply to the respondent SE letter dated 06.06.2015,
the claimant by its letter dated 16.06.2015 submitted that
the claimant was forced to close the work for reasons
attributable to respondent own organization and same are
enumerated as under :-
a) Inspite of repeated requests in writing and your
assurances, our rates which are more than 6 years old
and no more workable, have not been revised and we
are unable to proceed with the work unless revised
rates are agree upon.

84
 b) That there was undue prolongation of contract for
reasons all attributable to the respondent and/or
beyond our control. The reasons of delay were :-
i) Delayed handing over of site.
ii) Delayed handing over of drawings and
specifications.
iii) Substantial increase in quantity of work
iv) Addition of new item of work
v) In ordinate delay in payment of RA bills
vi) The respondent did not honour the agreed terms
and conditions of the contract.
vii) The claims raised by the claimant were not
addressed so far by the respondent.

185. As such there were valid reasons for the closure of the
works. The claimant further requested the respondent to
withdraw notice, revised the rates of the claimant as per
market conditions and honour the contract and that the
claimant thereafter resume the works. The respondent also
notified the respondent to refrain from taking any unilateral
decision.
Photocopy of letter dated
16.06.2015 is submitted as
Exhibit C/150, at pg. 324 of Vol. II
of this SOC.
186. That there was no further correspondence and or
communication made to the claimant by the respondent
after last letter dated 06.06.2015 issued by respondent SE
and which is on record.

85
187. That the claimant by its letter dated 22.07.2017 gave notice
under provision of clause 25 of clauses of contract, section-8
of agreement giving final account of dues/disputes/claims
arising out of and/or relating to the instant contract for
decision of the respondent SE. The details and summary of
final account was submitted separately as Annexure-A to be
aforesaid letter dated 22.07.2017. The claimant requested
for immediate decision by the respondent SE as per
provision of clauses of contract.
Photocopy of letter dated
22.07.2017 including Annexure-A
is submitted as Exhibit C/151, at
pg. 326 respectively of Vol. II of
this SOC.
188. That there was no decision in writing by the respondent SE
and as such the claimant by letter dated 06.09.2017
appealed to the respondent Chief Engineer (Civil), being the
competent authority as mentioned Schedule-F of the
contract agreement for immediate decision and resolving of
the matter in regard to the final account. Photocopy of letter
dated 06.09.2017 is submitted as Exhibit C/ , at pg
respectively of Vol. II of this SOC.
189. That inspite of NOTICE OF APPEAL to the appellate authority
in terms of Clause 25(1) of the agreement, there was no
information and/or decision by the appellate authority in
writing in the matter. As such the claimant invoke arbitration
and gave notice to the Chairman-Cum-Managing Director of
the respondent by letter dated 28.10.2017 for appointment
of arbitrator for adjudication of the disputes of the claims

86
 pertaining to the instant agreement. Photocopy of letter
dated 28.10.2017 is submitted as Exhibit C/ , at pg
respectively of Vol. II of this SOC.
190. That however, even the respondent no.2 did not take any
action for appointment of arbitrator and hence the claimant
was left with no other option but to move to the Hon’ble
High Court of Allahabad, Lucknow Bench in Arbitration
Appeal No.42 of 2018 with prayer under Section-11(6) of the
Arbitration and Conciliation Act, 1996 (Amended 2015) for
appointment of arbitrator. Photocopy of the petition
arbitration appeal no.42 of 2018 is submitted as Exhibit C/ ,
at pg respectively of Vol. III of this SOC.
191. That the Hon’ble Court was pleased to pass an order dated
21.02.2019, wherein your goodself were appointment as
Arbitrator in the instant matter. Photocopy of the order
dated 21.02.2019 is submitted as Exhibit C/ , at pg
respectively of Vol. III of this SOC.
192. Relevant Contract Stipulations:
a. SECTION 1- NOTICE INVITING TENDER AND INTRUCTIONS
TO TENDERERS

1.3 Time for Completion

The time allowed for completion of the work will be 08
(eight) months from the 15th day after the date of
issue of Letter of Acceptance in accordance with the
phasing, if any, indicated in the tender documents.

1.4 Brief Scope of Work:

87
 Work involves rehabilitation of existing rail
infrastructure and laying of rail infrastructure for new
plant units. Major activities involved are as under:

(i) Existing track to be completely renewed/renovated.

(ii) Rail clusters on existing bridges (4 no.) to be replaced

by standard slabs/ hume pipe bridge.

(iii) Concrete apron to be provided on oil sidings, under

Pitless In motion Railway Electronic Weighbridge and
at Loco shed.

(iv) Tracks to be laid for new units including construction

of one RCC box bridge.

(v) Dismantling existing level crossings and providing

level crossings at new location.

(vi) Construction of loco shed (approximate size 30 m x

24 m), service buildings and other allied buildings
(approximate area 35m x 15m)

1.5 Availability of Site

The site for the work is available.

13.0 Inspection of site by the tenderers:

Tenderers are advised to inspect and examine the site
and its surroundings and satisfy themselves before
submitting their tenders, as to the nature of the
ground and sub-soil (as far as is practicable), the form
and nature of the site, the means of access to the site,
the space they may require and in general shall

88
 themselves obtain all necessary information as to
risks, contingencies and other circumstances which
may influence or affect their tender. A tenderer shall
be deemed to have full knowledge of the site whether
he inspects it or not and no extra charges consequent
on any misunderstanding or otherwise shall be
allowed. The tenderer shall be responsible for
arranging and maintaining at his own cost all
materials, tools & plants, water, electricity, access,
facilities for workers and all other services required for
executing the work unless otherwise specifically
provided for in the contract documents. Submission of
a tender by a tenderer implies that he has read this
notice and all other contract documents and has made
himself aware of the scope and specifications of the
work to be done and of conditions and rates at which
stores, tools and plant etc. will be issued to him by the
Employer and local conditions and other factors having
a bearing on the execution of the work.

b. SECTION-3 - Special Conditions of Contract

1.0 In case of any conflict between the General

Conditions of Contract and the Special Conditions of
Contract, provisions of the Special Conditions of
Contract shall prevail.

2.0 Addition, alteration, deletion, modification,

amplification to GCC:

2.1 Replace the word RITES with RITES/ Employer.

89
2.2 Para-2(iv) of Section-7 of GCC replaced as under:
The Employer means the organization as mentioned in
Schedule-F.

2.3 Para-2(v) of Section-7 of GCC replaced as under :

The Engineer in charge means the Engineer Officer of
the Employer who shall supervise and be in-charge of
the work and who shall sign the contract on behalf of
the Employer as mentioned in Schedule F.

2.4 The first sentence of Clause-1 (ii) of section -8 of GCC

is replaced as under :
“The Performance Guarantee shall be initially valid up
to the stipulated date of completion plus 90 days
beyond that”.

2.5 Clause-10CC of Section-8 of GCC deleted.

2.8 Clause 46.10 of GCC deleted.

8.0 Stacking of Ballast

8.1 Inside Plant stacking area for ballast shall be made
available as per convenience of the Employer.
8.2 Outside plant stacking area to the extent convenient to
the Employer shall be made available. Contractor may
have to arrange additional areas at his own cost as per
requirement of the work.

10.0 Handing Over of Track:

10.1 Track after linking shall be rolled with 3 to 4 passes of
locomotive. All the defects noticed during and after the

90
 rolling by locomotive shall be attended to and rectified
by the contractor at his own cost and nothing extra
shall be payable on this account. Locomotive and its
running shall be arranged by the Employer on
chargeable basis @ Rs. 2500/ hour.
10.2 On attending the track by the Contractor after rolling
and on issuing of fitness certificate by the Engineer-in-
charge, track shall be deemed to be handed over.
However, this will have no bearing on commencement
of defect liability period.

c. Special Specifications

3.0 Fastening for laying & linking of track

SN Name of Drawing No. Conforming to

Fitting
1. Elastic Rail RDSO/ T-3701 T-31-1992
Clips(ERC)Mk -3
2. Elastic Rail clip T-4158 T-31-1992
for
Joint Sleepers
ERC-J
3. Combination (a) RDSO/T-3741-GS Provisional 1995
Metal (b) RDSO/T-3742-
Liners NGS
5. GRSP 6mm thick RDSO/T-3711 T-47-2006

6. Fish Plates 52 kg RDSO/T-090(M) T-1-1966

7. Fish Bolts RDSO/T-11501, T- IRS:T-23-1967

11638

91
 8. Spring Washers RDSO/T-10773 IRS: T-42-1988

9. Combination Fish CSO/ T-6-1965

plates 52kg- C1900(M)&CSO/
90Lbs C1901(M)
10. Combination Fish CSO/ T-6-1965
plates 52kg-90R C1944(M)&CSO/
C1945(M)

4.0 General Working Procedure

4.1 Lines for new units and additional lines for existing unit
shall be laid without any traffic constraints.

4.2 Existing lines except for siding approach from chainage

0/468 to chainage 2/151 to be dismantled and laid
new.
4.3 Existing lines from chainage 0/468 to chainage 2/151
including turn outs no.T-1, T-2, T-3, T-8 and T-12 shall
be renewed under traffic. Replacement of rail cluster
by slabs/hume pipes shall also be under traffic. Broad
stages of work is indicated below :

i) Ballast required for this approach to be stacked

/transported along the track.
ii) Adequate wooden blocks for cluster bridges to be kept
at site.
iii) Sleepers to be spread along the track.
iv) Arrangement of traffic blocks be decided with Railways
and the Employer.
v) Through sleeper renewal is to be done in stages under
block. In one block of 4 hours with the men power of
92
 100 around 100 meter stretch may be completed.
vi) AT the end of the block suitable ramp to be provided at
both ends between new and old track for passage of
trains.
vii) Shoulder ballast and Crib ballast to be provided in the
stretch where work has been carried out.
viii) New 52 Kg. rails to be spread along the track with
pairing done and SWP of 3 rail panel done on cess by
thermit welding.
ix) Through rail renewal (TRR) to be done under block in
stretches of around 500 M in 5 hours block.
x) Cess should be repaired to ensure proper drainage as
per profile.
xi) Track to be lifted to its final level in steps of 75mm
under look out caution/traffic block. Lifting at rail
clusters to be supported by wooden blocks.
xii) Pre-cast RCC slabs to be provided on rail cluster
bridges under block.
xiii) Level crossings to be laid as per IRPWM standard and
road surface painted.
xiv) Released material to be segregated, stacked and
handed over to the employer.

This is only indicative and tentative and for general

guidance of the bidder. Detailed scheme shall be prepared
on commencement of work subject to availability of traffic
blocks and traffic.

193. Legal position:

93
That the Claimant craves leave and draws attention of this
Hon’ble Tribunal to some of the Sections of Indian Contract
Act – 1872, which it intends to rely upon in this matter.

a. Section 51 of ICA stipulates as under :

Promisor not bound to perform, unless reciprocal

promisee ready and willing to perform.—When a
contract consists of reciprocal promises to be
simultaneously performed, no promisor need perform
his promise unless the promisee is ready and willing to
perform his reciprocal promise.

In the subject matter, the Respondent failed in various

reciprocal commitments such as handing over of
encumbrance free site in time, handing over of
approved drawings in time, making payments in time
during the original contract period.

b. Section 52 of ICA stipulates as under :

Where the order in which reciprocal promises are to be

performed is expressly fixed by the contract, they shall
be performed in that order; and where the order is not
expressly fixed by the contract, they shall be
performed in that order which the nature of the
transaction requires.

94
 In the subject matter, the Respondent failed in fulfilling
basic requirements for completion of work, as
explained above. The entire quantity of very
preliminary initial work was not in the scope of the
Claimants contract and thus grossly under estimated.
That therefore to take up additional responsibility,
Claimant needed introduction of necessary item of
work of earthwork in cutting in the BOQ by way of
Variation in Contract for execution of works in scope of
the contract. But the Respondents failed to approve
/sanction the enhancement within the original
contractual period of the contract.

c. Section 53 of ICA stipulates as under :

Liability of party preventing event on which the

contract is to take effect.—When a contract contains
reciprocal promises, and one party to the contract
prevents the other from performing his promise, the
contract becomes voidable at the option of the party
so prevented: and he is entitled to compensation from
the other party for any loss which he may sustain in
consequence of the non-performance of the contract.

In the subject matter, the Respondent had prevented

the Claimant full performance of the Contract within
stipulated period, and thereafter instead of
compensating the Claimant went ahead and arbitrarily
deducted huge amounts from RA bills of the Claimant.
Having failed in fulfilling basic requirements for
95
 completion of work, as explained above, Respondent
could not have invoked any penal clauses against
Claimant and at the same time are liable to
compensate the Claimant,

d. Section 54 of ICA stipulates as under :

Effect of default as to that promise which should be

performed, in contract consisting of reciprocal
promises.—When a contract consists of reciprocal
promises, such that one of them cannot be performed,
or that its performance cannot be claimed till the other
has been performed, and the promisor of the promise
last mentioned fails to perform it, such promisor
cannot claim the performance of the reciprocal
promise, and must make compensation to the other
party to the contract for any loss which such other
party may sustain by the non-performance of the
contract.

That in the facts of the present matter, the Respondent

cannot make applicable any penal clause. Instead the
Respondent need to compensate the Claimant for the
losses suffered and additional expenditures incurred
due to non performance by the Respondent.

e. Section 55 of ICA stipulates as under :

96
Effect of failure to perform at fixed time, in
contract in which time is essential.- When a party
to a contract promises to do a certain thing at or
before a specified time, or certain things at or
before specified times, and fails to do any such
thing at or before the specified time, the contract,
or so much of it as has not been performed,
becomes voidable at the option of the promisee, if
the intention of the parties was that time should
be of the essence of the contract.

Effect of such failure when time is not essential. If

it was not the intention of the parties that time
should be of the essence of the contract, the
contract does not become voidable by the failure
to do such thing at or before the specified time;
but the promisee is entitled to compensation from
the promisor for any loss occasioned to him by
such failure.

Effect of acceptance of performance at time other

than that agreed upon. If, in case of a contract
voidable on account of the promisor' s failure to
perform his promise at the time agreed, the
promisee accepts performance of such promise at
any time other than that agreed, the promisee
cannot claim compensation for any loss
occasioned by the non- performance of the
promise at the time agreed, unless, at the time of

97
 such acceptance he gives notice to the promisor
of his intention to do so.”

f. Section 56 of ICA stipulates as under :

Agreement to do impossible act. – An agreement

to do an act impossible in itself is void.

Contract to do act afterwards becoming

impossible or unlawful.- A contract to do an act
which , after the contract is made , becomes
impossible , or by reason of some event which the
promisor could not prevent , unlawful, becomes void
when the act becomes impossible or unlawful.

Compensation for loss through non-performance

of act known to be impossible or unlawful.- When
one person has promised to do something which he
knew , or with reasonable diligence , might have
known , and which the promise did not know, to be
impossible or unlawful, such promisor must make
compensation to suh promise for any loss which such
promise sustains through the non performance of the
promise.

g. Section 73 of ICA stipulates as under :

Compensation for loss or damage caused by

breach of contract.- When a contract has been
broken, the party who suffers by such breach is

98
 entitled to receive, from the party who has
broken the contract, compensation for any loss or
damage caused to him thereby, which naturally
arose in the usual course of things from such
breach, or which the parties knew, when they
made the contract, to be likely to result from the
breach of it. Such compensation is not to be
given for any remote and indirect loss or damage
sustained by reason of the breach.

Compensation for failure to discharge

obligation resembling those created by
contract.- When an obligation resembling those
created by contract has been incurred and has
not been discharged, any person injured by the
failure to discharge it is entitled to receive the
same compensation from the party in default, as
if such person had contracted to discharge it and
had broken his contract. Explanation.- In
estimating the loss or damage arising from a
breach of contract, the means which existed of
remedying the inconvenience caused- by the
non- performance of the contract must be taken
into account.

The principle of damages is that a party, whose

rights have been violated, should be put in the same
position, so far as money can do it, as if its rights
had been observed. The Claimant submits that it is

99
 entitled to recover the profits which it would have
earned if the respondent had fulfilled its primary
promises at the start and or within a reasonable
period and not breached he contract.

194. Breach of Contract by the respondent :

Claimant submits that the Respondent was in Breach of the
Contract for the following reasons:
i. That the respondent did not provided all site to the
claimant for work at the start date of the work , i.e 15
days after the date of issue of LOA.
ii. That the respondent failed to provide the work sites
hindrance free for over 42 months from date of issue of
LOA.
iii. That the respondent failed to make and approve
variations in the contract as required within a
reasonable time period .
iv. That the respondent failed to make payment of RA bills
within the dates as prescribed in the clauses of the
contract.

That the above said Breach of contract by the Respondent

were the fundamental breaches touching the root of the
contract. Under such circumstances, Respondent was duty
bound to compensate the entire additional costs incurred by
the Claimant and the losses suffered by it.

That time was not of essence of the contract in the subject

matter. In the present case, the period of work order was

100
admittedly extended. The effect of such an extension would
be that it cannot be considered that time was of the essence
of the contract. According to the contract, there were direct
and implied duties/ promises that the Respondent needed to
perform, in order to enable the Claimant to perform its
promise.
That the Respondent in this case, never proceeded on the
basis that the time was of the essence of contract, by virtue
of non-performance of reciprocal promises to be fulfilled by
them and also in the given circumstances by virtue of
granting time extensions to the Contract.

That apart from the terms of the Contract and the provisions
contained in Sections 51, 52, 53 , 54, 55 and 73 of the
Indian Contract Act, it is an established principle that a
particular contract is entered into on the belief that the
Promisor party shall perform its part of contract within such
time, in such a way that the Promisee could perform its
obligations within the stipulated time.

That in the present matter the Respondents failed and/or

neglected to give hindrance free site for performance in a
time and manner necessary for fulfilment / implementation
of the contract. The respondent also failed to make payment
for the works executed in prescribed time. In the event ,
therefore the Respondent was liable to pay due
compensation/damages to the Claimant on various counts.

Having regard to the nature of job required to be performed

within stipulated period of 8 months by the Claimant it was

101
obligatory on the part of the Respondent to hand over
complete site at the start of work along with the approved
Drawings in absence whereof it was not possible for the
Claimant to perform its contractual obligations in its
entirety.

That it is a well settled proposition of law that a party which

prevents occurrence of an event cannot be allowed to take
advantage of its own actions. This position has been amply
exemplified in Chitty on Contracts, 29th Ed., 2.148, pp.
194-195 in the following terms:

“Duty not to prevent occurrence of the event: …,

before the event occurs, the main obligations have not
accrued, but in the meantime either party must not do
anything to prevent the occurrence of that event. Thus
In Mackay vs. Dick an excavating machine was sold on
the condition that it could excavate at a specified rate
on the buyer’s property. The buyer’s refusal to provide
facilities for a proper trial was held to be a breach.
Similarly, the seller would have been in breach, had he
refused to subject the machine to the proper test. The
same principle is illustrated by a case in which a
professional footballer was transferred for a fee, part
of which was to be paid only after he had scored 20
goals. Before he had done so, the new club dropped
him from their first team, they were held to be in
breach as they had not given the player a reasonable
opportunity to score the 20 goals. The duty not to
prevent the occurrence if the condition has been

102
explained as resting on an implied term and this
explanation limits the scope of the duty in a number of
ways. For example, the implied term may be only to
the effect that the party will not deliberately prevent
the occurrence of the condition, or even more narrowly
that he will not wrongfully do so. The latter type of
implication may allow a party to engage in certain
kinds of deliberate prevention but not in others: for
example, it may allow a company which has promised
an employee the opportunity of earning a bonus to
deprive him of that opportunity by going out of
business, but not by simply dismissing him, before the
bonus has become due.”

In Emden’s Building Contracts and Practice, 9 th Edition at

Page 328, it is stated that:
“A contractor will be entitled to recover payment and will
not be liable to the employer in damages if he can show that
the non-completion of the work was due to some act or
default of the employer.”

As such, the settled Law prohibits the Respondent to impose

any penal clause on the Claimant ( forfeiture of Security
Deposit and Performance Guarantee, imposition of LD ) but
instead obligates the respondent to compensate the
Claimant for the losses and additional expenditures that the
Claimant suffered.

103
 That the Claimant craves leave to rely on various
pronouncements of the Hon’ble Courts of India in support of
its submissions and contentions at the time of oral hearings
of the present proceedings..

195. Claim No.1: Claim for Amount of final bill for

works executed under the agreement.

1. Dues:
a. A revised amount of Rs. 79,61,308/- due on account of
the pending final bill is payable to the claimant under
the contract.

2. Background:
a. The time stipulated in the instant contract for the
completion of the works was 8 months from reckoned
start date. The reckoned start date as per the terms of
LOA was 15 days from date of LOA. As such the start
date of the instant contract was 31.05.2010 and
stipulated date of completion of works was 30.01.2011.

b. That due to reasons attributable solely to the

respondent the works could not be executed and
completed within stipulated contract period and due to
which the claimant was forced to execute works in the
extended period of the contract. However the period of
the contract was prolonged to inordinate time as the
respondents failed to provide necessary hindrance free

104
 sites/fronts, even after more than 48 months of date of
LOA.

c. The last time extension provided in the instant contract

was upto 31.12.2014. ( C/ ). But even then all works
could not be completed due to various continuing lapses
and failures on the part of the respondent, and which
are on record.

d. That the respondent did not grant any time extension

for completion of the works under the instant contract
after 31.12.2014. The respondent hugely delayed
payment of the running bills, did not approve/sanction
enhancement of quantities of items of works as required
for completion of the works and also did not approve
/sanction necessary rates for new item works like
precast concrete bridge which was required /intended to
be done.

e. That due to the Breach of contract on the part of the

respondent leading to inordinate prolongation of the
contract period to over 54 months instead of designed 8
months, the cost of execution of the works at site
became an unworkable/impossibility. The respondent
did not resolve the issues related to payment of
escalation in the contract, release of withheld monies,
and other disputes of compensation /damages which
were raised by the claimant at material time.

105
f. That the respondent failed to revise the rates of the
works in the facts and circumstances of the instant
work, inspite of repeated reminders/requests. The
respondent competent authorities did not give decision
under provisions of the Clause 25(1) of Clauses of
Contract leading to time loss. The claimant was thus
subjected to huge losses on account of non actions by
the respondent.

g. The claimant was therefore forced to close the

agreement from his side and as such no commitment to
start the balance work was given by the claimant in the
last meeting held on 12.05.2015 ( C/ ) in regard to
execution of balance work. The respondent also did not
take any action on the claimants notice letter
MPL/S/RITES/Aligarh/15-16 dated 16.06.2015 (C/ ).

h. That the above said notice letter was never replied and
nor any other correspondence was done by the
respondent thereafter confirming any positive action by
the respondent in the interest of completion of the
remaining works. There was no time extension provided
to the instant contract and as such the contract was
allowed to die.

i. That the claimant was entitled to final payment for the

works executed by it under the contract agreement and
accordingly it submitted the final account of

106
 dues/disputes/claims arising out of and or related to
instant agreement.

j. That the claimant had submitted the Final bill of the

works as measured by it on 20.03.2015, amounting to
Rs. 79,61,308.24p as part of the FINAL ACCOUNT
( enclosed separately as Annexure ‘A’ to its notice dated
22.06.2017 (Ref: C/ ).

k. That no action has been taken by the respondent

authority for payment of the said amount in final bill. All
the measurements in regard to final work done are
recorded and part of the above said final bill submitted
by the claimant.

l. The respondent have not denied and disputed neither

the measurements recorded and nor the amount of final
bill even after passing of more than four years since
submission of the same. The respondent are now
estoppeled to take any objection to the submissions of
the claimant and or amount in final bill as submitted by
the claimant.

m. As such , the payment of final bill of the claimant is due.

3. The Respondent have thus denied payment of final bill

to the Claimant in a reasonable time and thus caused
injury to the Claimant.

107
4. The Claimant was thus prevented usage of the
withheld /unpaid amount of final bill for doing further
business and make profit . The Claimant was thereby
prevented from making gain/profits from other works ,
which is in normal parlance between 10% to 15% per
anum. The Claimant was thus put to business loss of
minimum 10% per anum.

5. Total amount for payment:

a. Thus, the total amount payable by the respondent to the
claimant under this claim is Rs. 79,61,308/- which is the
amount of final bill as per the claimant.

6. Enclosures:
a. The 22nd and Final bill is enclosed as annexure- ‘A’
at pg. of this Vol. CD-I of this SOC.

7. Pleading:
a. The Claimant prays before the Ld. Tribunal for award of
the amount of Rs.79,61,308/- as final bill towards works
executed under the instant contract in final settlement
of Claim No.1.

108
196. Claim No.2: Claim for Refund of security deposit,
both cash S.D deducted from RA bills and initial
S.D deposited as EMD (Rs.6086537.00+Rs.
1760000.00 = Rs.78,46,537.00)

1. Dues:
a. The total amount due towards the release of Security
Deposit including initial earnest money deposited in
shape of Demand Draft ( encashed subsequently) is
Rs.78,46,537/- (Cash security Rs.60,86,537/- + initial
EMD Rs.17,60,000/-).

2. Background:
a. The claimant reiterates the facts as mentioned in paras
2(a) to 2(g) of Claim No. 1 above.

b. That the respondent neither replied to the claimants

notice dated 16.06.2015 nor made any other
correspondence thereafter confirming any positive
action in the interest of completion of the remaining
works. There was no time extension provided to the
instant contract by the respondent and as such the
contract was allowed to die.

109
c. That the claimant was entitled to release of all security
deposit in custody of the respondent and accordingly it
submitted the final account of dues/disputes/claims
arising out of and or related to instant agreement.

d. That the amount of initial earnest money was Rs.

17,60,000/- which was converted to security deposit
after issue of LOA. ( C/1)

e. That the details of deduction towards security deposit

from running account bills is enclosed as annexure-
‘B’ at pg. of this Vol. CD-I of this SOC.

f. That in view the total security deposit including amounts

deducted from running bills and that deposited as initial
earnest money totals to Rs. 78,46,537/- ( Rs. 17,60,000/-
+ Rs. 60,86,537/-).

g. That no action has been taken by the respondent

authority for release of the security deposit.

h. The respondent have not denied and disputed release of

the security deposit even after passing of more than
four years of closure of the works by the claimant. The
respondent are now estoppeled to take any objection to
the submissions of the claimant and or release of
amount in security deposit.

110
i. As such , the release of the security deposit of the
claimant against the instant contract lying with the
respondent is due.

j. The non release of the amount in security depost till

date have caused injury to the Claimant. The Claimant
was prevented usage of the said amount for doing
further business and make profit . The Claimant was
thereby prevented from making gain/profits from other
works , which is in normal parlance between 10% to
15% per anum. The Claimant was thus put to business
loss of minimum 10% per anum.

3. Pleading:
The Claimant prays before the Ld. Tribunal for award of
the amount of Rs.78,46,537/- towards release of security
deposit lying in custody of the respondent against the
instant agreement in final settlement of Claim No.2.

4. Interim Relief:
That the amount of Rs.78,46,537/- is refundable towards
the security deposit under the terms of the contract,
That the amount is not in dispute. Therefore, pursuant
to section 17 of the Arbitration and Conciliation Act,
1996 (Amended 2015) the claimant prays interim relief
by Ld. Tribunal. The claimant has incurred heavy losses
during the prolonged period of the contract and also
thereafter. The claimant prays for award of refund of
security deposit as interim measure.

111
197. Claim No.3: Claim for extra items of work beyond
BOQ items, but not paid.

1. Dues:
a. The total amount due towards the claim of extra items
of works executed by the claimant and for which
payment was not made by the respondent amounts to
Rs.29,19,447/-.

2. Background:
a. The claimant submits that it executed no. of extra items
of works which were additionally required to be done for
the completion of works under the instant agreement.

b. The claimant had to execute the following extra items of

works :-
i) Transportation of ballast from the place of stacking
to the place of actual usage and spreading the
same.
ii) Transportation of earth obtained from earthwork in
cutting from inside the plant to a distance beyond 1
Km. and disposal of the same in areas as decided

112
 and shown by the respondent including private
areas.
iii) Cost of metal liners procured and fitted in line no.15
& 16, but thereafter removed to facilitate with GFN
liners as required for signaling arrangement.

c. That the claimant was entitled to the cost incurred in

execution of the extra items of work as above but for
which respondent did not take any action of
deciding/fixing suitable rate and making payment of the
same.

d. That the respondent did not have any free area for
stacking of ballast inside the plant area and the claimant
therefore had to be stacked all the ballast supplied by it,
around 17600.45 Cum, outside the plant area in places
as marked by the respondent and also in private areas.
As per clause 8.0 – stacking of ballast (Section-III,
Special Conditions of Contract, Pg.93 of Vol-CD-III of
SOC), the respondent were required to make available
stacking area inside the plant for ballast supply to be
used in works inside the plant. The rates quoted against
item no.9 of Schedule-A for handling/leading/spreading
of ballast was offered according to such presumption
and terms of the contract. But in the instant case the
respondent were unable to provide any free ground
inside the plant area for stacking of the ballast and as
such the entire ballast supply had to be made by
stacking ballast outside the plant area. As such there

113
 was involvement of extra lead for transportation of
ballast from stacks outside the plant to places of usage
inside the plant. The claimant is entitled to the extra
cost involved and incurred in such transportation of
ballast, the details of which provided under sl. No.1 of
Annexure-C, submitted at Pg…… of Vol-CD-I of this SOC.

e. That further all the earthwork in cutting (sanctioned as

extra item of work) was required to be done inside the
plant area and the rate for disposal of the aforesaid cut
spoils was also approved with lead of maximum 1 Km.
However due to constraint in space/area of disposal
within 1 Km. lead, cut spoils had to be lead with distance
more than 1 Km., but for which no rate was available.
The quantity of work done with extra lead (more than 1
Km.) was around 60000 cum. the details of which
provided under sl. No.2 of Annexure-C, submitted at
Pg…… of Vol-CD-I of this SOC.

f. As per instructions of the respondent/consultant the

claimant had further to supply GFN liners and fix the
same in pre-tipplers areas in line no.15 & 16. The
instructions for execution of track work in the aforesaid
area with GFN liner was given after the track in the area
was already linked with provision of metal liner. The
thus removed metal liners were rendered extra supply
and which could not be used in works causing losses to
the claimant. The claimant is entitled to the cost
incurred by it to making supply of such metal liners. the

114
 details of which provided under sl. No.3 of Annexure-C,
submitted at Pg…… of Vol-CD-I of this SOC.

g. That the total amount of expenses as per Annexure-C is

Rs……………….. The work executed by the claimant
were done as per respondents own instructions and/or
carried under their supervision. The claimant is
therefore entitled to the aforesaid amount of
Rs………………

h. The non payment by the respondent for extra work

executed by the claimant have caused injury/losses to
the Claimant. The Claimant was prevented usage of the
said amount for doing further business and make profit .
The Claimant was thereby prevented from making
gain/profits from other works , which is in normal
parlance between 10% to 15% per anum. The Claimant
was thus put to business loss of minimum 10% per
anum.

i. The claimant rely on documents marked as Exhibits C/1

………………….. in support of this claim.

3. Pleading:
The Claimant prays before the Ld. Tribunal for award of
the amount of Rs…………………./- towards extra items of
work executed by it in settlement of Claim No.3.

115
198. Claim No.4 : Claims for withheld amount on
account of penalty for non deployment of PM and
DPM with interest upto 30.06.2017.

1. Dues:
a) An amount of Rs. 32,96,109/- is due to the claimant on
account of amounts arbitrarily withheld by the respondent
towards alleged non deployment of Project Manager (PM)
and Dy. Project Manager (DPM) including interest thereto
till 30.06.2017.

2. Background:
a. The time stipulated in the instant contract for the
completion of the works was 8 months from reckoned
start date. The reckoned start date as per the terms of
LOA was 15 days from date of LOA. As such the start
date of the instant contract was 31.05.2010 and
stipulated date of completion of works was 30.01.2011.

b. That respondent had categorically declared in the

contract documents that all sites were available for
work, but the respondents failed to provide necessary
hindrance free sites/fronts, even after more than 54
months of date of LOA due to which the works could not
be executed and completed within stipulated contract
period and the claimant was forced to execute works in
the extended period of the contract. The period of the
contract was prolonged to inordinate time. The
respondent were therefore in breach of the contract.
116
c. That as per the terms of the contract the claimant had
to depute Principal Technical Representative (PTR) and
Dy. PTR for the stipulated period of the contract i.e. 8
months. The claimant had specially considered the cost
towards such aforesaid deployment for stipulated period
of 8 months in its quoted rates, as the claimant was
aware that non deployment of the personals/ engineers
in terms of provision of agreement clauses (Ref. Clause
36(i), at Pg.181 of Vol-CD-III if SOC) would attract
recovery of heavy amounts as specially mentioned in
clauses of contract from its bills.

d. That however the execution of works within stipulated

period of 8 months in the contract was dependent of
fulfillment of condition precedent primary reciprocal
promises/obligations by the respondent and which the
respondent failed to perform within the stipulated period
of contract. The failure of the respondent continued till
over 54 months from the date of LOA. The respondent
was thus in Breach of Contract.

e. That the respondent provided site in piecemeal manner

and due to which the work of track linking had to be
executed in parts/phases extended over the period of
more than 54 months. The respondent even thereafter
could not provide hindrance free all site and therefore
deleted track linking work in certain areas for which
decision was given at a much belated stage. The

117
 respondent was in breach of the contract. The claimant
informed the respondent time to time that it was
incurring huge infructuous expenditures on overheads
due to lapses and failure on the part of the respondent
and which would have to be compensated by the
respondent. The claimant also claimed payment of price
escalation in the contract as the cost of execution of the
work had increased manifold and the claimant incurred
huge losses in execution of works during the extended
period of contract for reasons of delay all attributable to
the respondent. The claimant also demanded loss of
profit due to continuous engagement (idle or working) of
its resources, men and machinery at the instant work
site and due to which it unable to move to other work
site for profit. However, respondent did not take any
action to make revision in rates/make payment of
escalation and/or compensate the claimant its losses.
The respondent therefore could not demand deployment
of such highly paid technical personals during the
extended period of the contract, without compensating
the additional expenditure. The claimant had deployed
adequate technical personals experienced in p-way
works, which cannot be denied, considering the 95%
satisfactory work completed by the claimant and same
in use by the respondent for running of the power plant
and profit.

f. The claimant had protested time and again the arbitrary

deductions made by the respondent on the

118
 recommendation of the consultant, who it was in
knowledge of the respondent were working with
prejudiced mindset from the very beginning, as the
same were not justified in the facts of the instant case.
The claimant had therefore demanded refund of such
amounts deducted for non deployment of PM/DPM
during the extended period of contract.

3. The Respondent had deducted amounts from the RA bill

wrongly, beyond the stipulated period of the contract.

4. The Claimant was thus prevented usage of the

withheld /unpaid amount of final bill for doing further
business and make profit . The Claimant was thereby
prevented from making gain/profits from other works ,
which is in normal parlance between 10% to 15% per
anum. The Claimant was thus put to business loss of
minimum 10% per anum.
5. Total amount for refund:
a. Thus, the total principal amount deducted by the
respondent is Rs.21,60,000/-, which is required to be
refunded to the claimant. The claimant is also entitled to
cost/expenditures incurred by it due to wrongful and non
contractual action of the respondent.
b. That due to deductions made by the respondent, lesser
amount was paid to the claimant in RA bills and which
disturbed the cash flow at site. The claimant had to
supplement from other sources/bank amounts due to its
suppliers and labours, for which the claimant incurred

119
 expenditure by way of interest. The claimant has
claimed payment of such expenditures in addition to the
principal amount .

6. Enclosures:
a. The details of amount withheld from various RA
bills including expenditure incurred till 30.06.2017
by the claimant on such amounts is enclosed as
annexure- ‘D’ at pg. of this Vol. CD-I of this
SOC.
b. The principal amount deducted is Rs.21,60,000/- and the
expenditure incurred towards aforesaid amount till
30.06.2017 is Rs.11,36,109/-. The total amount therefore
is Rs.32,96,109/-.

7. Pleading:

a. The Claimant prays before the Ld. Tribunal for award of

Rs.32,96,109/- in final settlement of Claim No.4.

199. Claim No.5: Claim on account of loss of

overheads onsite and offsite due to delay in
completion of the project.

120
1. Dues:
a. An amount of Rs.81723403/- is due to the claimant on
account of loss of overheads onsite and offsite due to
breach of contract by the respondent .

2. Background:
a. That the work under the contract was to be completed
within 8 months time.

b. That the claimant submit that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.

c. That the respondent had failed to fulfil the primary

reciprocal promises to unable the claimant to perform
the contract in time and manner as given in the
agreement, as such the respondent must not only make
compensation to the claimant for all losses suffered by
the claimant, including loss of overheads incurred by the
claimant during the prolonged period of contract.

d. That the claimant has brought out in the facts of the

instant case that the lapses and failure of the
respondent continued even beyond 54 months from
date of LOA on various account and due to which the
claimant could not complete the works in scope of the

121
 instant contract. All the reasons of delay in completion
of the work were attributable to the respondent and said
were mentioned by the claimant in the applications
submitted time to time for seeking time extension. ( Ref:
C/ , C/ , C/ , C/ ). The reasons as mentioned were
never denied and disputed at material time by the
respondent.

e. That the claimant suffered huge losses by way of loss of

profit, over heads onsite and offsite, idle machinery etc.
due to prolongation of the contract period of eight
months to over 54 months.

3. The claimant was unable to move to other worksite with

its men and machinery from making profits/gain due to
prolongation of execution of works of the instant
agreement.

4. That the claimant had to bear the expenses incurred on

its supervisory personals, office expenses, travelling
expenses and all other expenses necessary to keep the
on site establishment in working condition. The claimant
had also to bear the off site expenses incurred at head
office etc. during the extended period of the contract

5. That in the present case provisions of Section 51 to 56 &

73 of Indian Contract Act 1872 were applicable.

122
6. That if the claimant had completed the works of the
value as in the agreement within the stipulated period of
8 months, the claimant would not have to bear the huge
expenses incurred beyond stipulated time period. The
expenses incurred not only cut into the profits of the
claimant, but rather caused heavy losses to the
claimant.

7. That the respondents being in breach of the contract are

liable to compensate the claimant with all such
expenditures incurred by it and brought to the notice of
the respondent at material time, and which was not
denied and disputed by the respondent.

8. That in provisions of Section 73 of the Indian Contract

Act 1872, the claimant was entitled to compensation
and damages on account of breach of contract caused
by the respondent.

9. The details of calculation is submitted as Annexure ‘E’

at page …………… of Vol-CD-I of SOC.

10. There is no agreed terms in the Clauses of Contract

which specifically debars/prohibits payment of
compensation and damages to the claimant for reasons
of breach of contract on the part of the respondent.

11. Pleading:

123
From the above, it is very much evident that the
claimant suffered loss on overheads onsite and
offsite due to prolongation of contract period.
Hence, the Claimant prays before the Ld. Tribunal
for award of the amount of Rs.8,17,23,403/- in
favour of the claimant in final settlement of this
claim no.10.

124
200. Claim No.6 : Claim on account of loss of Profit due
to delay in completion of the project.

1. Dues:
a. An amount of Rs.8,17,23,403/- is due to the claimant on
account of loss of profit due to breach of contract by the
respondent .

2. Background:
a. That the work under the contract was to be completed
within 8 months time. There was specific provision in the
contract for levy of huge penalty for non completion of
the works within 8 months.

b. That the claimant submits that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.

c. That in the present case provision of Sections – 51 to 55

& 73 of the Indian Contract Act, 1872 are applicable.
The respondent had failed to fulfil the primary reciprocal
promises to enable the claimant to perform the contract
in time and manner as given in the agreement, as such
the respondent must make compensation to the
claimant for all losses suffered by the claimant including
loss of profit which the claimant could not earn due to
its continued involvement in the instant work with all its

125
 resources, men and machinery during the prolonged
period of the contract.

d. That the respondent was in breach of the contract. The

claimant has brought out in the facts of the instant case
that the lapses and failure of the respondent continued
till over 54 months from the date of LOA on various
account and due to which the claimant could not
complete the works in scope of the instant contract. All
the reasons of delay in completion of the work were
attributable to the respondent and said were mentioned
by the claimant in the applications submitted time to
time for seeking time extension. ( Ref: C/ , C/ , C/ ,
C/ ). The reasons as mentioned were never denied and
disputed at material time by the respondent.

e. That the claimant suffered huge losses by way of loss of

profit, over heads, idle machinery etc. due to
prolongation of the contract period of eight months to
over 54 months.

3. Contract provision:
a. Clause 1.5 of Special conditions of contract , at pg. of
C/ , Agreement, Vol. CD-III of SOC.
b. That the relevant Clauses for time extension as per
provision of Clauses of Contract is Clause 5 , at pg. of
C/ , Agreement, Vol. CD-III of SOC.

126
4. The claimant was unable to move to other worksite with
its men and machinery from making profits/gain due to
prolongation of execution of works of the instant
agreement. If the claimant had moved to other sites
with the same resources as deployed at instant work
site , it would have done huge business and made
profits, but which was prevented due to reasons
attributable to respondent.

5. That in the present case provisions of Section 55 & 73

were also applicable. That in the instant case the
respondent had failed to fulfill reciprocal promises and
due to which the performance and completion of works
by the claimant was prevented not only within
stipulated completion period but also for inordinate time
thereafter, for over 46 months beyond original
completion period given in the contract. As such in said
circumstances the respondent was bound to
compensate the claimant for the losses and damages,
as per the law of the land.

6. That if the claimant had completed the works of the

value as in the agreement within the stipulated period,
by normal parlance it would have earned profit approx.
10% of the contract value. The delay here due to
respondent was additional 46 months , and the claimant
was prevented from such earnings during the prolonged
period of 47 months , all due to breach of contract on
thepart of the respondent.

127
7. That the claimant had mobilized huge resources
including men and machinery to execute the work of
entire amount of the contract value within the given
time of 8 months. But due to the latches and failures on
the part of the respondent the claimant was unable to
execute the works as planned and contemplated in view
of the huge resources mobilized by it.

8. That the claimant had contemplated to make a

minimum profit to the tune of 10% of the work order
value within the stipulated period of 8 months from date
of LOA. But the completion of instant work was
prolonged by extra 46 months and the claimant was
subjected to huge loss of profit. The claimant could not
take up new works/tenders for business/profits, due to
continuation of its involvement in the instant contract
work. The claimant could not remove the resources
deployed from the site till the work under instant
agreement was completed and thereby there was non
utilization/under utilization of the deployed resources
causing huge losses to the claimant.

9. That considering the prolonged period of extra 47

months due to defaults, breach of contract on the part
of the respondent, the claimant has calculated the Loss
of profit applying widely accepted Hudson formula, by
the Hon’ble Courts .

128
10. The claimant takes support of Hudson formula to assess
the loss of profit and which is widely accepted by
Hon’ble courts in India. The details of calculation is
submitted as Annexure ‘F’ at page of Vol.CD-I of
this SOC.
11. There is no agreed terms in the Clauses of Contract
which specifically debars/prohibits payment of
compensation and damages to the claimant for reasons
of breach of contract on the part of the respondent.

12. Pleading:
From the above, it is very much evident that the
claimant suffered loss of profit due to
prolongation of contract period. Hence, the
Claimant prays before the Ld. Tribunal for award
of the amount of Rs.8,17,23,000/- in favour of the
claimant in final settlement of this claim no.6.

129
201. Claim No. 7: Claim for price increase @ 10 % per
annum for the works executed beyond original
completion period.

1. Dues:
a) An amount of Rs.15,81,960/- is due to the claimant on
account of final escalation bill computed upto total Gross
value as per 11th & final bill under the Contract
agreement.

2. Background / Reasons for this claim:

a) That the Claimant was not responsible for the delay in

completion of the works.

b) That there were various lapses and failures on the part of

the respondent due to which the work could not be
completed within the stipulated original time. Thereafter
for nearly more than 12 months the work of the project
was forced into standstill as the respondent department
did not have funds for the instant project .
c) That the respondent did not provide the work site in
approach of abutment A2 completed in all respect with
earth filling till November 2015 to enable the claimant to
start the process of launching of girders.
d) That the launching scheme of girders was approved by
the respondent only in 4th week of January 2016, after

130
 which only the launching of girders could be executed by
the claimant.
e) That the construction of retaining wall by Randum rubble
masonary was allowed after the completion of launching
of girders and completion of all earthwork in
embankment.
f) That the execution of misc. works like making of stairs,,
turfing, final painting, trolly refuges etc was possible only
after placing of the girders in final position.
g) That the work of major bridge was completed within
March 2016 and thereafter misc. works by July 2016. As
the respondent was responsible for the delay, the
claimant was entitled to time for completion of the works
under clause 17A of GCC 2008, with application of price
escalation.

h) The provisions of Clause 17 of GCC 2008 are extracted

below : Relevant Clause 17 A (ii) /(iii), 17 B.

Provisions of Clause 17 A (ii ) of GCC 2008:

“ If in the opinion of the Engineer the progress of work
has at any time been delayed by an act or neglect of
Railway’s employees or by other contractor employed by
the Railway under sub clause (4) of Clause 20 of these
conditions or in executing the work not forming part of
the contract but on which contractor’s performance
necessarily depends or by reason of proceeding taken or
threatened by or dispute with adjoining or neighboring
owners or public authority arising otherwise through the
contractor’s own default etc. or by the delay authorized
131
by the engineer pending arbitration or in consequences
of the contractor not having received in due time
necessary instructions from the railway for which he
shall have specially applied in writing to the engineer or
his authorized representative then upon happening of
any such event causing delay , the contractor shall
immediately give notice thereof in writing to the
engineer within 15 days of such happening but shall
nevertheless make constantly his best endeavours to
bring down or make good the delay and shall do all that
may be reasonably required of him to the satisfaction of
the engineer to proceed with the works. The contractor
may also indicate the period for which the work is likely
to be delayed and shall be bound to ask for necessary
extension of time. The engineer on receipt of such
request from the contractor shall consider the same and
shall grant such extension of time as in his opinion is
reasonable having regard to the nature and period of
delay and the type and quantum of work affected
thereby . No other compensation shall be payable for
works so carried forward to the extended period of time ,
the same rates ,terms and conditions of contract being
applicable as if such extended period of time was
originally provided in the original contract itself. “

Provisions of Clause 17 A (iii ) of GCC 2008:

“ In the event of any failure or delay by the railway to
hand over the contractor possession of the lands
necessary for the execution of the works or to give the

132
necessary notice to commence the works or to provide
the necessary drawings or instructions or any other
delay caused by the Railway due to any other cause
whatsoever , then such failure or delay shall in no way
affect or vitiate the contract or alter the character
thereof or entitle the contractor to damages or
compensation thereof but in any such case , the railway
may grant such extension or extensions of the
completion date as may be considered reasonable. “

Provisions of Clause 17 B of GCC 2008 :

“ The time for the execution of the work or part of the
works specified in the contract document shall be
deemed to be the essence of the contract and the works
must be completed not later than the date(s) as
specified in the contract. If the contractor fails to
complete the works within the time as specified in the
contract for the reasons other than the reasons specified
in clauses 17 and 17A , the railway may, if satisfied that
the work can be completed by the contractor within
reasonable short time thereafter, allow the contractors
further extension of time (Proforma Annex. I) as the
engineer may decide . On such extension the railway will
be entitled without prejudice to any other right and
remedy available on that behalf , to recover from the
contractor as agreed damages and not by way of penalty
a sum equivalent to ½ of 1% of the contract value of the
works for each week or part of the week.

133
For the purpose of this Clause, the contract value of the
works shall be taken as value of work as per contract
agreement including any supplementary work
order/contract agreement issued. Provided also ,that the
total amount of liquidated damages under the condition ,
shall not exceed the under noted percentage or of the
total value of the item or groups of items of work for
which a separate distinct completion period is specified
in the contract.
(i) For Contract value upto Rs. 2lakhs- -- 10% of the
total value of the Contract.

(ii) For Contract valued above Rs. 2lakhs- -- 10% of the

first 2 lakhs And 5% of the balance.

Further competent Authority while granting

extension to the currency of contract under clause
17 ( B ) of GCC may also consider levy of token
penalty as deemed fit based on the merit of the
case.

Provided further , that if the railway is not satisfied that

the works can be completed by the contractor and in the
event of failure on the part of the contractor to complete
the work within further extension of time allowed as
aforesaid ,the railway shall be entitled , without prejudice
to any other right or remedy available in that behalf , to
appropriate the contractor’s security deposit and rescind
the contract under clause 62 of these

134
 conditions ,whether or not actual damage is caused by
such default.”

i) That even on the date of communication of grant of time

extension upto 31.12.2015 under Clause17 B of GCC
2008, the Respondents had not approved the launching
scheme of girders, had not allowed construction of
retaining wall as per the drawing originally provided to
the claimant.
j). The Respondent was therefore in Breach of the Contract.
The terms/provisions /Clauses of contract
Agreement are binding on both the parties signing
the contract and are not to be imposed
unilaterally.
k) That the Respondent being in a dominant position , took
arbitrary decisions contrary to the provisions of contract.
That in-spite of Claimants representation, the arbitrary
application of Clause 17 B for grant of time extension
was not withdrawn by the Respondent department. It is
therefore clear that the Respondents sole
intention was to cover up its lapses and failures
arising out of Breach of Contract by the
Respondents and to deny the Claimant price
adjustment under PVC Clause of the contract.
l) The provisions of Clause 20 of Special Conditions of
Contract provide that no price escalation was admissible
in case of grant of time extension with applicability of
Clause 17 B of GCC 2001. However in the present case

135
 of the Claimant the application of Clause 17B of GCC
2001 for grant of time was itself arbitrary.
m)The Claimant questions the application of Clause
17 B of GCC 2001 after the expiry of specified time
given in the instant contract. That the governing
Clause for grant of time extension is Clause17 of
GCC 2001 which is clear and unambiguous.

3. Contract provision:

a) The provisions of Clause 17 of GCC 2001 are extracted

above under this claim.
b) Clause 35 – Price Variation of chapter III at pg 22 of 100 of
agreement. Para 10 of the clause is extracted as under:
‘The price Variation Clause will be applicable to all time
extensions of time granted to the date of completion in
cases where the original time of completion was more
than one year except extension granted under Clause 17
B of GCC 2001.’

3. Notice given to the Employer:

a) The Claimant on receipt of communication of grant of

time extension under 17 (B) of GCC 2008 immediately
lodged its protest and requested the department for
reconsideration and reversal of wrongful/unjustified

136
 application of Clause17 B of GCC 2008 for grant of time
extension.

4. Total amount of Payment:

a) Total sum amounting to Rs.15,81,960/- is due to the

Claimant as per the final escalation Bill. The Detailed
final escalation bills with attachments are enclosed as
Annexure ‘K’ ,page 139 of SOC ,Vol – I.

b) The supporting document relating to RBI Indices for

Labour , Materials and Fuel is enclosed as Exhibit C/127 at
Pg. of Vol. – III.

5. Business loss / Additional expenditure incurred

due to non payment of escalation :

a) That the respondent prevented usage of the amount

rightly due to the claimant by denying price escalation for
doing further business and make profit . The Claimant
was thereby prevented from making gain/profits from
other works.

6. Pleading:

a) With the above, it is very much evident that the

claim towards payment of final escalation bill upto
total Gross amount of 11th & final bill under the

137
 contract is justified. Hence, the Claimant prays
before the Ld. Tribunal for award of the amount of
Rs. 15,81,960/-.

202. Claim No.8: Claim of extra cost incurred towards

costs of keeping the Performance Guarantee valid
beyond original period of completion and also
thereafter period beyond completion period.

1. Dues:
a. An amount of Rs.10,42,188/- is due to the claimant on
account of extra cost incurred by the claimant towards
cost of keeping the Bank guarantees submitted in
performance of the instant agreement.

2. Background:
a. That as per the provisions of tender, after the issue of
LOA , the claimant was required to submit Performance
Bank Guarantee(PBG) of value 5% of the value of the
contract.

b. That as such the claimant submitted Bank Guarantee

bearing BG no. 32/2010 dated 21.06.2010 for value
138
 93,40,700/- issued by Canara , Main Road Ranchi,
towards performance Bank Guarantee. In addition the
claimant also submitted B.G no. 31/2010 for Rs.
55,00,000/- towards security in lieu of rails supplied by
the respondent for the manufacture of Points and
Crossings/ Detailing switches etc. for the instant work.

c. That the work under the contract was to be completed

within 8 months time. And accordingly the required
Bank guarantees were to be kept validated for period 60
days extra beyond stipulated date of completion.

d. That the claimant submits that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete performance
of works within given stipulated time of 8 months.

e. There was provision for providing extension to time of

completion in the contract and as such the claimant had
to seek extension of time stating the facts of the case.

f. That in total the respondent provided four nos time

extensions (Ref: C/ , C/ C/ C/ submitted in Vol. CD-II of
the SOC), extending time of completion from original
stipulate date of 30.01.2011 to 31.12.2014. There was
no communication in regard to extension of time of the
contract after 31.12.2014. The time extension was given
by the respondent based on the reasons of delay

139
 mentioned in the application seeking time by the
claimant and which reasons were never denied and
disputed by the respondent at material time. All reasons
of delay were attributable to the respondent.

g. That the claimant was forced to extend the validity of

the bank guarantees as per terms of the contract. The
claimant incurred huge costs in keeping the bank
guarantees valid in form of commission/expenses paid
to bank issuing the bank guarantees.

h. The above said expenses were incurred by the claimant

due to lapses and failures in fulfillment of necessary
reciprocal obligations by the respondent. The total time
allowed in the contract was 8 months, and the said time
was also the essence of the contract. Failure to fulfill
condition precedent primary obligations amounted to
breach of contract on the part of the respondent.

i. The expenses thus incurred in keeping the bank

guarantees valid for longer period of time were not
envisaged at the time of tender and included in cost.

j. That the Claimant had to extend the validity of the PBG

each time the time for completion of the works under
the agreement had to be sought. The respondent had
granted last time extension upto 31.12.2014.
Accordingly the claimant had ensured to keep the PBG
valid till 09.03.2015. (Ref: C/ )

140
k. That neither time extension was granted by respondent
beyond 31.12.2014 , nor the respondent addressed to
various issues raised by the claimant arising out of
inordinate prolongation of contract period and breach of
contract on the part of respondent. As such the
respondent allowed the contract to die after 31.12.2014.
As such the claimant had no reason to renew the validity
of the bank guarantees after expiry date.

3. That the present claim is for the extra expenses incurred

by the claimant for keeping the bank guarantees valid
till 09.03.2015, i.e for extra period of about 47 months
beyond 31.03.2011. The claimant also suffered loss of
expenditure on the amounts of commission paid to the
bank, which was an infructuous expenditure ans which
could have been avoided if the respondent had truly
performed in terms of the agreement.

4. That the entire delay was attributable to respondent .

The respondent being in breach of the contract was
liable to compensate the losses incurred by the
claimant. As such, the present claim. The details of
which is enclosed as Annexure ‘ G ‘, at page of Vol.
CD-I of this SOC.

5. The total claim includes the principal amount of Rs.

and also the expenses paid by way of interest on the
credit facilitated by the bank amounting to Rs. /-.

141
6. That the claimant prays for award of such claim
amount of Rs 1042203/- by the Ld. Tribunal in
settlement of this claim no. 8 for end of justice.

142
203. Claim No.9: Claim for withheld amount on account
of time extension with interest upto 30.06.2017.

1. Dues:
a. An amount of Rs.13,58,159/- is due to the claimant on
account of amount withheld by respondent on account
of time extension along with expenses incurred by way
of interest.

2. Background:
a. That the work under the contract was to be completed
within 8 months time.

b. That the claimant submits that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.

c. That in the event of non completion of the works within

the stipulated period of contract, there was provision in
the contract for extension of time of completion to
reasonable period on the basis of application made by
the claimant. It was also a provision of the contract that
the respondent will communicate grant of time
extension within three months of the date of application
made by the claimant contractor. ( Ref : Clause 5 of
Clauses of Contract, Section – 8 , pg of Vol. CD-III of
this SOC.)

143
d. That in total four nos. time extension were
granted/communicated by the respondent in the instant
contract. The last time extension granted was upto
31.12.2014. The respondent took huge time much in
excess to stipulated time of three months for grant of
time extension and was therefore in breach of the
agreed terms of the contract.

e. The claim hereunder brings out the delay made by the

respondent in respect of granting time extension :
Stipulated date of completion : 30.01.2011.
Date of Date on Date upto
application which time which time
extension granted
granted
1st time 27.01.2011 20.06.2011 31.10.2011
extensio
n
2nd time 03.11.2011 02.03.2012 31.03..2012
extensio
n
3rd time 26.05.2012 03.09.2013 31.01.2014
extensio
n
4th time 02.05.14 05.11.2014 31.12.2014
extensio
n
5th time 24.01.2015
extensio

144
 n

f. That the above chart clearly shows that the respondent

took long time to grant time extension, which affected
payment of running bills of the claimant.

g. The respondent withheld 10% of the bill value of running

bills against in lieu of non grant of time extension, thus
causing lesser payment of the RA bill , which affected
the cash flow at work site.

h. The action of the respondent of withholding money was

arbitrary and beyond the provisions of contracted terms
and conditions and hence the respondent was
responsible for all resulting consequences. The claimant
had to borrow money from other sources/bank and put
in work to make payment to its labours and material
suppliers, which caused the claimant to bear extra
expenses.

i. The respondent returned /refunded the above said

amounts withheld by them after due communication of
grant of time extension. But during the intermediate
period the claimant incurred huge expenses, which was
not envisaged and or built in the rates quoted by the
claimant. As such the claimant was entitled to
compensation for the wrong doings of the respondent,
as per the law of the land.

145
3. The details of the amounts withheld from various RA
bills and dates when the same were refunded is
submitted as separate Annexure ‘ H ’ , at pg. of Vol.
CD-I of this SOC.

4. The above said statement also show that an amount of

Rs. 632957/- was withheld from 20 th RA bill and the
same was still in the custody of the respondent, as not
refunded even after grant of time extension upto
31.12.2014. The amount of Rs. 632957/- is still due to be
refunded to the claimant.

5. The Statement marked as Annexure ‘H’ also shows the

calculation of cost incurred by the claimant by way of
interest paid to its banker for different periods on the
loan facility provided to the claimant.

6. The total due amount to the claimant as per Annexure

‘H’ is Rs. 1358159/-, which includes the principal amount
of Rs. 632957/- withheld and in custody of the
respondent and Rs. 725202/- the expense amount till
30.06.2017.

7. That there is no term of the contract which empowers

the respondent to make such withhold of amounts from
RA bills and as such the action of the respondent was
arbitrary, wrongful, & non – contractual.

146
 8. That the claimant prays for award of such claim
amount of Rs 13,58,159/- by the Ld. Tribunal in
settlement of this claim no. 9 for end of justice.

204. Claim No.10: Claim for withheld amount on

account of “not starting the work of In-motion
weigh bridge” from various bills with interest
upto 30.06.2017.

1. Dues:
a. An amount of Rs. 6,27,103/- is due to the claimant on
account of amount withheld by respondent on account
of ‘ non starting of In motion Weigh Bridge’ including
expenses incurred on the withheld amount by way of
interest.

2. Background:
a. That the work under the contract was to be completed
within 8 months time.

b. That the claimant submits that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.
147
c. That the location of the In-Motion Weigh Bridge was
required to be approved by RDSO / Zonal Railway
authorities. This was possible only after approval of the
Engineering Scale Plan ( ESP ) of the project.

d. That it was in the knowledge of the respondent that ESP

was not approved by the competent authority of the
Railway. In view the finalization of location of the In-
Motion Weigh Bridge was much delayed.

e. However the respondent held the claimant responsible

for delay and withheld Rs. 300000/- from RA bill 15 th due
to non start of the work of weigh bridge.

f. That the work of In-Motion Weigh Bridge was

completed , after joint inspection and testing by the
respondent and consultant officials handed over under
joint signature to the concerned department of the
respondent for usage. The usage of the weigh bridge
was started by respondent.

g. The respondent refunded the amount withheld, But

there was no provision in terms of the contract for
making such deductions from RA bills. But during the
intermediate period the claimant incurred huge
expenses, which was not envisaged and or built in the
rates quoted by the claimant. As such the claimant was
entitled to compensation for the wrong doings of the

148
 respondent, as per the law of the land. The respondent
action was arbitrary, wrongful and non-contractual.

h. That the respondent again from 20th RA bill deducted Rs.

400000/- as it wanted the In Motion Weigh Bridge to be
calibrated in presence of Railway authority. This was not
in scope of the claimant, and RITES being consultant for
the instant work was responsible to ensure due
calibration in presence of Railway authority. The
respondent had put Rs. 400000/- on hold from 20 th RA
bill the amount, making it a tool to make the claimant
to follow their dictates as having higher bargaining
powers.

i. That the claimant extended all help possible and the

work of calibration was also done to the satisfaction of
the respondent. Still the withheld amount was not
refunded, inspite of repeated request by the claimant.

3. That there is no term of the contract which empowers

the respondent to make such withhold of amounts from
RA bills and as such the action of the respondent was
arbitrary, wrongful, & non – contractual.

4. The details of the amounts withheld from various RA

bills and dates when the same were refunded/not
refunded is submitted as separate Annexure ‘ I ’ , at pg.
of Vol. CD-I of this SOC.

149
4. The above said statement also show that an amount of
Rs. 300000/- was deducted from 15 th RA bill and the
same was refunded along with payment of 17 th RA bill.
But the amounts of Rs. 400000/- withheld from 20 th RA
bill was still in the custody of the respondent.

5. The Statement marked as Annexure ‘H’ also shows the

calculation of cost incurred by the claimant by way of
interest paid to its banker for different periods on the
loan facility provided to the claimant availed to tide the
cash flow requirement at work site.

6. The total due amount to the claimant as per Annexure ‘I’

is Rs. 6,03,877/-, which includes the principal amount of
Rs. 4,00,000/- withheld and in custody of the respondent
and Rs. 2,03,877/- the expense amount till 30.06.2017.

7. That the claimant prays for award of such claim

amount of Rs 6,03,877/- by the Ld. Tribunal in
settlement of this claim no. 10 for end of justice.

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205. Claim No.11: Claim for withheld amount on
account of “Demerges charges” with interest
upto 30.06.2017.

1. Dues:
a. An amount of Rs. 2,70,170/- is due to the claimant on
account of amount withheld by respondent on account
of Demmurage Charges including expenses incurred on
the withheld amount by way of interest.

2. Background:
a. That the work under the contract was to be completed
within 8 months time.

151
b. That the claimant submits that the respondent failed to
fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.

c. That the respondent deducted from 15th and 16th RA bills

amounts alleging demmurage charges imposed by the
railway department. The respondent alleged that the
claimant did not complete track renewal of line line no.
3 complete with fit for usage due to which the
respondent was forced to unload oil tankers only on line
no. 5 and there was delay in such unloading , due to
which the respondent had to pay demmurage charges.
The respondent alleged that demmurage charges was
on account of the claimant and hence the same was
deducted from the bills of the running bills of the
claimant.
d. That the claimant submits that there is a general working
procedure provided in the agreement ( Ref: Clause 4.0 ,
Special Conditions of Contract , Section -3 , at page 95
of Vol. CD-III of this SOC). It is a term of the contract
that Lines for new units , additional lines for existing
units will be laid without any traffic constraints. Also only
Existing line from Chainage (Ch.) 0/468 to Ch. 2/151
including turnouts T/1, T/2, T/3, T/8, T/12 will be
renewed under traffic.

152
e. That there was no case of any delay and or bursting of
traffic block period due to which any delay was caused
in traffic movement. As such claimant cannot be held
responsible for any other reason of delay which caused
delay and for which demmurage was imposed by the
railway department and which was allegedly levied on
the claimant.

f. The respondent action of deduction was beyond the

agreed terms of the contract. In fact there is no
provision in the agreement for shifting such
responsibility on the claimant and thereafter resorting to
arbitrary deductions from RA bills by the respondent.
Hence the respondent was responsible for all resulting
consequences.

3. The details of the amounts deducted from various RA

bills is submitted as separate Annexure ‘ J ’ , at pg. of
Vol. CD-I of this SOC.

4. The above said statement show that an amount totaling

to Rs. 1,56,800/- was deducted towards demmurage
charges from 15th and 16th RA bills, which is to be
refunded along with cost incurred by the claimant by
way of interest paid to its banker for different periods on
the loan facility provided to the claimant.

5. The total due amount to the claimant as per Annexure ‘J’

is Rs. 2,70,170/-, which includes the principal amount of

153
 Rs. 1,59,800/- deducted arbitrarily by the respondent
and Rs. 1,13,370/- the expense amount till 30.06.2017.

6. That the claimant prays for award of such claim

amount of Rs 2,70,170/- by the Ld. Tribunal in
settlement of this claim no. 10 for end of justice.

206. Claim No.12: Claim for withheld amount on

account of “Fine for way bill” with interest upto
30.06.2017.

1. Not pursued

207. Claim No.13: Claim for compensation arising due

to non release of plant & machinery, tools &
tackle, balance construction p-way fittings taken
to site but not released from inside the plant.

154
1. Dues:
a. An amount of Rs.50,00,000/- is due to the claimant on
account of plant and machinery, tools and tackle ,
balance construction p-way fittings not allowed to be
taken out from inside the plant.

2. Background:
a. That the work under the contract was to be completed
within 8 months time.

b. That the claimant submit that the respondent failed to

fulfill their contractual obligations at the start of the
work and/or thereafter within a reasonable time due to
which the claimant was unable to complete the work
within given stipulated time of 8 months.

c. That the respondent had failed to fulfil the primary

reciprocal promises to enable the claimant to perform
the contract in time and manner as given in the
agreement.

d. That the claimant brought out in the facts of the instant

case that the lapses and failure of the respondent
continued even beyond 54 months from date of LOA on
various account and due to which the claimant could not
complete the works in scope of the instant contract. All
the reasons of delay in completion of the work were
attributable to the respondent and said were mentioned
by the claimant in the applications submitted time to

155
 time for seeking time extension. ( Ref: C/ , C/ , C/ ,
C/ ). The reasons as mentioned were never denied and
disputed at material time by the respondent.

e. That the claimant suffered huge losses by way of loss of

profit, over heads onsite and offsite, idle machinery etc.
due to prolongation of the contract period of eight
months to over 54 months.

f. That the execution of the works at same rates after 54

months was not feasible. The claimant had continually
raised the issue of payment of escalation or revision in
rates of the works in lieu of the drastic rise in cost of
execution of the works beyond stipulated contract
period, i.e during extended period of contract which had
inordinately stretched to over 54 months.

g. The respondent had not extended the time of

completion beyond 31.12.2014, as such no valid
agreement was in force beyond said date. The claimant
refused to further continue with the execution and
completion of the remaining works unless the long
pending issues of the claimant were addressed, decided
and claimant compensated for all the losses incurred by
it due to Breach of Contract on the part of the
respondent.

156
 h. the claimant was not allowed to take out plant and
machinery, tools and tackle , balance construction p-
way fittings from inside the plant.

3. The present claim is towards cost of the JCB, Batching

plant, vibrators, nozzles, shuttering plates, p.way tools
and tackle, P.Way fittings not allowed to be taken out
and which remained in the respondent custody. The
approximate value of the aforesaid materials was
assessed as Rs. 50,00,000/-. The claimant was thus
subjected to further losses by the respondent.

4. That the claimant prays for award of such claim

amount of Rs 50,00,000/- and or as assessed and
deemed fit by the Ld. Tribunal in settlement of
this claim no. 12 for end of justice.

208. Claim No.14(a) : Claim for interest @ 15% per

annum on the sum of total amount of claim nos.1
to 12 from 30.06.2017 till date of award by the
Ld. Tribunal.

1. That the work under the contract was to be completed

within 8 months time. But the respondent failed to fulfill
its contractual obligations at the start of the work and/or
thereafter within a reasonable time due to which the
claimant was unable to complete the work within given
stipulated time of 8 months.

157
2. That the respondent had failed to fulfill the primary
reciprocal promises to enable the claimant to perform
the contract in time and manner as given in the
agreement. The respondent was thus in breach of the
contract. The claimant suffered huge losses on various
accounts.

3. The respondent did not address positively to the issues

raised by the claimant in regard to the huge losses
incurred by it due to which disputes persisted.

4. That he claimant therefore invoked clause 25 of the

Clauses of Contract and following due process sought
the disputes and claims to be referred to an arbitrator
for adjudication. As such the claimant was before the Ld.
Tribunal.

5. That the claimant has argued all its claims 1-13 before
the Ld. Tribunal. That by this claim no. 14(a) the
claimant prays before the Tribunal for award of
pendentelite interest on the amounts as awarded by the
Ld. Tribunal against the claim item nos. 1-12 for period
beyond 30.06.2017 till date of Award under provisions of
Section 31(7)(a) of the Arbitration and Conciliation Act
1996 ( Ammended 2015).

6. That the claimant has prayed for interest @15% per

annum.

158
 7. The claimant prays for award of the interest @
15% per annum till the date of award on all the
items of claims 1 to claim 12 and or on amounts
and rate the Ld. Tribunal deems fit and proper for
end of justice.

209. Claim No.14(b) : Claim for future interest @ 15%

per annum on the sum of total amount of claim
nos.1 to 14(a) from date of award till date of
actual payment.

1. That by this claim no. 14(b) the claimant prays before

the Tribunal for award of future interest on the sum of
amounts as awarded by the Ld. Tribunal against the
claim item nos. 1-14(a) from the date of award till the
date of actual payment under provisions of Section
31(7)(b) of the Arbitration and Conciliation Act 1996
( Ammended 2015).

2. That the claimant has prayed for interest @15% per

annum as the same is charged by its bank on the OD
account facilitated to the claimant.

3. The claimant prays for award of the future

interest @ 15% per annum and or at rate of
interest as the Ld. Tribunal deems fit and proper
on the sum of amounts of award under claims 1 to
159
 claim 14(a) from the date of award till date of
payment for end of justice.

210. Claim No.20: Claim of Goods & Services Tax (GST)

as made applicable by the Central Govt. from
01.07.2017 on the amount of payment/ award
finally paid by the respondent.

1. That GST has been made leviable on the amount paid

for contract works on and from 01.07.2017. The present
rate of GST on contract works is 12%.
2. That there is provision in clauses of contract that if any
further Tax or levy is imposed by Statute , after the last
stipulated date for the receipt of tender including
extensions if any and the contractor thereupon
necessarily and properly pays such taxes/levies the
contractor shall be reimbursed the amount so paid. Ref:
Clause 38 , Section -8 ( Clauses of Contract), pg
183 of Vol. CD-III of this SOC.
3. That any payment against the work executed on date
against the instant contract will be liable for GST tax @
12% .
4. The payment of GST tax may be directly made by the
respondent to respective authority with copy of payment
challan provided to the claimant.
5. The claimant prays the Ld. Arbitrator to award the
amount of GST at rate as applicable at the time of
passing of the award on the final amount as awarded to
the claimant by the Ld. Tribunal.
160
211. Claim No.21: Cost of reference:

1. The Claimant intends to submit the actual amount

incurred by him towards cost of this Arbitration at the
end of the Arbitration proceedings and which will form
the claim amount against this claim .

2. The Claimant states that it has been unnecessarily

forced into this arbitration proceedings due to the failure
and refusal of the Respondents to pay the legitimate
dues under this contract to the Claimant. The Claimant
had requested the Respondent several times for the
settlement of his legitimate dues. On the refusal and / or
prolonged inaction on the part of the Respondents to
settle the issues, the Claimant was left with no option
but to take the course of settlement through Arbitration.

3. The Claimant is entitled to award of cost of reference of

this proceeding, in terms of Statutory provisions. In the
present case the respondent is the defaulting party and
being in Breach of the Contract are liable to compensate
the claimant for all resulting consequences.

4. The Claimant states that as per natural justice the

award of cost follows the event. The Claimant is entitled
to awards, so also he is entitled to cost to an amount the
Ld. Tribunal deems fit and proper.

161
 5. For equity and justice, the Claimant craves leave to
submit the details of the expenditures that would be
finally incurred for this Arbitration proceeding at last
stage for consideration of the Ld. Arbitration Tribunal.

212. ENCLOSURES BY THE CLAIMANT:

a) The abstract of claims is submitted as Annexure-Y at
page of this SOC.
b) The Claimant hereby submits documents marked as
Exhibits C/1 to C/130, at pages 1 to Vol.-II & Vol-
III of this S.O.C in support of its case and craves leave
to refer to said documents during the course of hearing.
c) The claimant had submitted details of the claims
separately by way of Annexure-A to Annexure-X in
support of its claims and the same are attached in Vol-I of
this SOC.

213. The Claimant craves leave to submit further documents

/evidences and or details in support of its case at
appropriate time during the present arbitration proceeding.
214. The Claimant craves leave to submit rejoinder if so
necessary on counter statement of facts, if submitted on
behalf of the Respondents.
215. The Claimant reserves its right to add, alter, amend, and
substitute to its statement of case/fact, amounts of Claims,
during the course of hearing.
216. The undersigned is one of the Directors of the Claimant
Company. A Xerox copy of Company Board Resolution and
162
 Power of Attorney authorizing Sri Pradip Modi to represent
and sign all documents on behalf of the Company in the
matter is attached as Exhibits C/129 & C/130 at pg
, Vol. – III of this SOC.
217. The Claimant in view of the aforesaid statements prays
before the Ld. Tribunal to award all the Claims in full plus
interest as per Provisions of 1996 Act. in final settlement of
disputes/ claims of the Claimant specifically referred to
before the Ld. Tribunal.
For and on behalf of Modi
Projects Ltd.

( Pradip Modi )
Director
Date: 01/07/2019
Place: Ranchi

163
 AFFIDAVIT

I, Pradip Modi, Son of Late Sita Ram Modi, resident of – 9/1,

Basant Vihar, Kanke Road, PO – Ranchi University & PS – Gonda,
Dist. Ranchi do hereby solemnly affirm and state as follows:-

1. That I am the Director of the claimant Company in this

present arbitration proceeding and as such I am well
acquainted with the facts and circumstances of the case.
2. That I have been duly authorized to swear this affidavit on
behalf of the claimant and as such I am fully competent to
swear this affidavit.
3. That I have read this petition and affidavit and I have
understood the same.
4. That the statement made in paragraphs
………………………...............................
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
…………………………………... of this petition are true to my
knowledge and those made in paragraphs
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………

164
 ………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
…………………………………………. of this petition are
information derived from the relevant records of this case
which are true to my information and the statements made
in rest of the paragraphs of this petition are by way of my
humble submissions before this Hon’ble Tribunal.
5. That the Exhibits are photo/true copy of their respective
original.
6. Verified sworn and signed here at Ranchi on
………………………..

165
 VERIFICATION

I, Pradip Modi, Son of Late Sita Ram Modi, resident of – 9/1,

Basant Vihar, Kanke Road, PO – Ranchi University & PS – Gonda,
Dist. Ranchi do hereby verify the contents of the statement of
facts/claims, which are true and correct to the best of my
knowledge, information and belief.

Verified and signed this on the day of July 2019

Deponent is
Known to me

Advocate

166