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ARBITRATION

SANJAY KHARE
Sr. Prof.(Works), IRICEN/Pune
ARBITRATION
GENERAL CONDITIONS OF CONTRACT
(CLAUSE 63 AND 64 OF GCC-2018)

and
Related Provisions of
ARBITRATION AND CONCILIATION
(Amendment) ACT 2015
What is ARTITATION ?
‘ The Process of solving an argument
between people by helping them to
agree to an acceptable solution’

• The settling of disputes between two parties


by an impartial third party, whose decision the
contending parties agree to accept.

• Arbitration is often used to resolve conflict


diplomatically to prevent more serious
confrontation.
What is ARTITATION ?
Introduction:

• Form of alternative Dispute Resolution.

• Alternate to court room litigation.

• Neutral 3rd party.

• Binding Dispute resolution, equivalent to


litigation in the courts.
What is ARTITATION ?
Introduction:

It is good and fair settlement


when neither party likes the
outcome,
but agree for it
ADVANTAGE OF ARBITRATION

• Safety valve- to avoid contract failure.


• Quick settlement of disputes- Faster than
litigation in court.
• Procedure is simpler than process of litigation.

• Less expensive - No court fee


• Choice of the Arbitrators - Disputing parties
can select a person with the technical
knowledge related to the work.
• Confidential- Arbitral proceedings and an
arbitral award are generally non-public.
• Preservation of Business relationship.
Arbitration Agreement
Governed by
“Arbitration and Conciliation Act,1996”

Amended by
“Arbitration and Conciliation (Amendment)
Act, 2015”

 Come into force on 23rd October 2015.


 Accordingly GCC-2014 (clause 64) modified: lt dt
16/11/2016 (NEW GCC-2018)
Arbitration Agreement
• Section-7 of A&C Act
(1)"arbitration agreement" means an agreement by
the parties to submit to arbitration all or certain
disputes which have arisen or which may arise
between them in respect of a defined legal
relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an


arbitration clause in a contract or in the form of a
separate agreement.
Arbitration Agreement
• Section-7 of A&C Act

(3) Arbitration Agreement to be in ‘writing’

(5) Reference in a contract to a document


containing arbitration clause constitutes an
Arbitration Agreement
Arbitration Agreement
(as given in GCC >>
Settlement of Disputes- Indian Railway
Arbitration Rules: clause 63 & 64)

GCC-2018
“Settlement of Dispute- Indian
Railway Arbitration and
Conciliation Rules”
RECONCILIATION OF DISPUTES
GCC CLAUSE 63

• All disputes and differences to be


referred by contractor to Chief Engineer
/ DRM.
• Disputes: may be during progress of
work/after its completion, before/after
determination of contract.
• Through ‘Notice of Dispute’
• Shall be served not later than 30 days
after the date of issue of Completion
Certificate by Engineer.
RECONCILIATION OF DISPUTES
GCC CLAUSE 63
• CE/ DRM to notify the name of
conciliator(s) within 30 days after
receipt of notice.
• Conciliator(s) assist to reach an
amicable settlement within the terms of
contract.
• The parties shall not initiate, during the
conciliation proceedings, any arbitral or
judicial proceedings in respect of a
dispute that is the subject matter of the
conciliation proceedings.
RECONCILIATION OF DISPUTES
GCC CLAUSE 63

• If the parties reach agreement on a


settlement of the dispute,
– they shall draw up and sign a written
settlement agreement
– duly signed by Engineer In-charge,
Contractor and conciliator(s).

• When the parties sign the settlement


agreement, it shall be final and binding
on the parties.
RECONCILIATION OF DISPUTES
GCC CLAUSE 63
The conciliation proceedings shall be terminated:
• By the signing of the settlement agreement by
the parties on the date of agreement; or

• By written declaration of the conciliator, after


consultation with the parties, to the effect that
further efforts at conciliation are no longer
justified, on the date of declaration; or
• By a written declaration of any party to the
conciliator to the effect that the conciliation
proceedings are terminated, on the date of
declaration;
MATTERS FINALLY DETERMINED BY
RAILWAY
GCC CLAUSE 63.1
• All disputes and difference to be
referred by contractor to GM.

• GM to make and notify decision on all


matters referred to within 120 days ( in
writing).

• The decision of railway authority in


respect of ‘EXCEPTED MATTERS’ shall be
final and binding and these matters
shall be excluded from purview of
arbitration clause
EXCEPTED MATTERS
CLAUSE MATTER
OF GCC
8 ASSISTANCE BY THE RAILWAY FOR
STORES TO BE OBTAINED BY
CONTRACTOR
18 ILLEGAL GRATIFICATION
22(5) MEANING AND INTENT OF
SPECIFICATIONS AND DRAWINGS
39 RATES FOR EXTRA ITEMS OF WORK
43(2) SIGNING OF “NO CLAIM” CERTIFICATE
45(a) MEASUREMENT OF WORKS
EXCEPTED MATTERS
CLAUSE OF MATTERS
GCC
55 PROVISIONS OF PAYMENT OF WAGES ACT
55 A(5) PROVISION OF CONTRACT LABOUR (R&A) ACT
1970
57 PROVISION OF WORKMEN COMPENSATION
ACT
57A PROVISIONS OF MINES ACT
61(1) RIGHT OF RAILWAY TO DETERMINE THE
CONTRACT
61(2) PAYMENT ON DETERMINATION OF CONTRACT
62(1) to DETERMINATION OF CONTRACT OWING TO
62(xiii)(B) DEFAULT OF CONTRACTOR

SPECIAL CONDITIONS
Clause 28(3)of A&C Act : while deciding award, tribunal take into
account the terms of contract.
DEMAND FOR ARBITRATION
GCC CLAUSE 64(1)(i)
• Dispute regarding construction or
operation of contract / rights and
liabilities of parties / withholding of
certificates (excluding Excepted Matter as in
clause 63.1)
• GM fails to make a decision within 120
days (as in clause 63.1)
• Contractor to demand in writing (to
refer the matter to arbitration) after
120 days but within 180 days of
presenting his final claim.
DEMAND FOR ARBITRATION
GCC CLAUSE 64(1)(ii) (a)
• Demand for arbitration to specify
matters in question or subject of
dispute/difference, as also the
amount of claim item-wise.
• Only these disputes/differences
along with counter claim to be
referred to arbitration.
• Other matters not to be included
in the reference.
DEMAND FOR ARBITRATION
GCC CLAUSE 64(1)(ii) (b)

• Parties may waive off the


applicability of sub section 12(5)
of A&C (Amendment) act 2015.

• If they agree in writing after


dispute having arisen.(standard format
given by Rly bd.)
Section 12

12(5). Notwithstanding any prior agreement to the


contrary, any person whose relationship, with the
parties or counsel or the subject-matter of the dispute,
falls under any of the categories specified in the
Seventh Schedule shall be ineligible to be appointed
as an arbitrator.

‘Seventh Sch: Arbitrator’s Relationship with Parties.’

Provided that parties may, subsequent to disputes


having arisen between them, waive the applicability of
this sub-section by an express agreement in writing
DEMAND FOR ARBITRATION
Commencement date?

CLAUSE 64(1)(iii) a

Arbitration proceedings shall be


assumed to have commenced from
the day, a written and valid demand
for arbitration is received by the
Railway
DEMAND FOR ARBITRATION

CLAUSE 64(1)(iii) b

The claimant shall submit his claim


stating the facts supporting the claims
along-with all the relevant documents
and the relief or remedy sought
against each claim within a period of
30 days from the date of appointment
of the Arbitral Tribunal
DEMAND FOR ARBITRATION

CLAUSE 64(1)(iii) c

The Railway shall submit its


defence statement and counter
claim(s), if any, within a period of 60
days of receipt of copy of claims from
Tribunal thereafter, unless otherwise
extension has been granted by
Tribunal.
DEMAND FOR ARBITRATION
Place of Arbitration ??
CLAUSE 64(1)(iii) d
Place of arbitration would be-
• within the geographical limits of the
Division of the Railway where the
cause of action arose, or
• The Headquarters of the concerned
Railway, or
• Any other place with the written
consent of the parties.
DEMAND FOR ARBITRATION

CLAUSE 64(1)(iv)

• No new claim to be added during


proceedings by either party

• Party may amend or supplement the


original claim or defence during the
course of arbitration proceedings
subjected to acceptance of arbitration
tribunal.
DEMAND FOR ARBITRATION
CLAUSE 64(1) (v)

• If claimant does not prefer claim in


writing within a period of 90 days of
receiving intimation from Railways that
the final bill is ready for payment, He
will be deemed to have waived his
claim.
• Railway shall be discharged and
released of all liabilities.
OBLIGATION DURING
PENDENCY OF ARBITRATION
GCC CLAUSE 64(2)
• During arbitral proceeding, work to
continue subject to direction to the
contrary by the Engineer
• No payment to be withheld on this
account
• However, Arbitral Tribunal may
consider and decide about continuation
of work.
APPOINTMENT OF ARBITRATOR

GCC CLAUSE 64(3) (a)

Appointment arbitrator where


applicability of section 12(5) of
A&C Act has been waived off:
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(a)(i)
- CLAIM UPTO ₹ 1 Crore
• Sole arbitrator
– To be appointed by GM
– to be appointed within 60 days from
the day when written and valid
demand is received by GM
– Gazetted Railway Officer, not below
JAG
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(a)(ii)
CLAIMS EXCEEDING ₹ 1 Crore

• Arbitral tribunal to consist of –


– 3 Gazetted Rly officers not below
JAG, or
– 2 Gazetted Rly officers not below JAG
and one railway officer retired not
below SAG and empanelled to work
as Arbitrator
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(a)(ii)
CLAIMS EXCEEDING RS. 1 Crore

• GM to send panel of at least 4 names to


the contractor within 60 days
• Contractor asked to suggest at least 2
names as contractors nominee within
30 days from date of dispatch of the
request by Railway.
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(a)(ii)

• GM to appoint at least one of them as


contractor’s nominee and appoint
balance number of arbitrators from
panel or outside duly indicating
‘PRESIDING ARBITRATOR.’
• GM to complete the exercise within 30
days from receipt of names of
contractors nominee
• One arbitrator should be from Accounts
Department.
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(a)(iii)

• The serving railway officer working in


arbitral tribunal in the ongoing
arbitration cases as per clause
64.(3)(a)(i) and clause 64.(3)(a)(ii)
above, can continue as arbitrator in the
tribunal even after his retirement.
APPOINTMENT OF ARBITRATOR

GCC CLAUSE 64(3) (b)

Appointment arbitrator where


applicability of section 12(5) of
A&C Act has not been waived off:
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(b)(i)

- CLAIM UPTO ₹ 50 Lakh


• Sole arbitrator – Retired Rly officer,
retired not below rank of SAG.
• Rly to send panel of at least 4 names of
retired Rly officers empanelled duly
indicating their retirement dates to the
contractor within 60 days
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3)(b)(i)

- CLAIM UPTO ₹ 50 Lakh


• Contractor asked to suggest at least 2
names as contractors nominee within 30
days from date of dispatch of the request
by Railway.
• GM to appoint at least one of them as
arbitrator
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3) (b)(ii)
CLAIM Exceeding ₹ 50 Lakh
• Arbitral tribunal to consist of –
– 3 retired Rly officer not below SAG
and empanelled to work as Arbitrator.
• GM to send panel of at least 4 names
duly indicating their retirement date to
the contractor within 60 days
• Contractor asked to suggest at least 2
names as contractors nominee within 30
days from date of dispatch of the
request by Railway.
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64(3) (b)(ii)
CLAIM Exceeding ₹ 50 Lakh
• GM to appoint at least one of them as
contractor’s nominee and appoint
balance number of arbitrators from
panel or outside duly indicating
‘PRESIDING ARBITRATOR.’
• GM to complete the exercise within 30
days from receipt of names of
contractors nominee
• One of them has served in the
Accounts Department.
PROCESSING ARBITRATION

Notice of Disputes to ≤ 30days after issue of


completion certificate
CE/DRM
≤ 30days

Notification of Conciliator
Settlement

Termination ≤ 90days of receiving


intimation of final bill

Receipt of Contractor's representation


(Disputes) to GM
≤ 120days

Notify decision (by GM)


≤ 60 days (after 120
days but before 180
Demand to days of presenting his
Arbitration claim)
PROCESSING ARBITRATION
Commencement of
Demand to Arbitration
Arbitration Proceeding

12(5) not waived off


12(5) waived off

≤ ₹ 1 cr > ₹ 1 cr ≤ ₹ 50lakh >₹ 50lakh

≤ 60 days Appointment
≤ 60 days
AT
Sole Arbitrator Rly send Panel of 4 Names to contractor
(Rly officer)
≤ 30 days
Contractor to suggest 2 Names
≤ 30days
Appointment of AT by GM
≤ 30days
Submission of Claims by claimant
≤ 60 days of
receipt of copy
of claims from
Submission of defence statement Tribunal
& counter claims by Rly
APPOINTMENT OF ARBITRATOR
GCC CLAUSE 64 (3)(c)(i)
• If Arbitrator(s) refuses to act/
withdraws/ vacates office/is unable to
perform/dies/fails to act without
undue delay, the GM shall appoint new
arbitrator(s) in the same manner

• Reconstituted tribunal may, at its


discretion, proceed with reference from
stage at which it was left.
PROCEEDINGS OF AT
GCC CLAUSE 64(3)(c)(ii) (a)
• Arbitral Tribunal can call for evidence by
way of affidavits or otherwise.
• it shall be the duty of the parties to do or
cause to be done all such things as may be
necessary to enable the Arbitral Tribunal to
make the award without any delay.
• Arbitral Tribunal to record day to day
proceedings.
• Proceedings to be conducted on the basis of
documents and written statements.
PROCEEDINGS OF AT
GCC CLAUSE 64(3)(c)(ii) (b)
Arbitral Tribunal first to decide over
• Any plea submitted/objections raised by any
party regarding appointment of AT
• Validity of arbitration agreement,
• jurisdiction and scope of the Tribunal of deal
with the dispute(s) submitted to arbitration,
• applicability of time ‘limitation’ to any dispute,
• any violation of agreed procedure regarding
conduct of the arbitral proceedings or
• plea for interim measures of protection.
Section-4 (A & C Act)
Waiver of right to object
If a party who knows that-
(a) any provision of this part from which
parties may derogate ,or
(b) any requirement under Arbitration
Agreement,
has not been complied with and yet
proceeds with arbitration without stating his
objection to such non-compliance without
undue delay, shall be deemed to have
waived of his right to so object.
QUALIFICATION OF ARBITRATOR
GCC CLAUSE 64(3) (c)(iii)
(i) Qualification of Arbitrator(s)
(a) Serving Gazetted Railway officers of
not below JA grade level
(b) Retired Railway Officers not below
SA Grade level, three years one year
after his date of retirement.
(c) Age of arbitrator at the time of
appointment shall be below 70 yeas.

* Vide Rly Bd lt no. 2009/CE-I/CT/14/Main dt 17.01.18


QUALIFICATION OF ARBITRATOR
GCC CLAUSE 64(3) (c)(iii)(iii)
• While appointing care to be taken that
Arbitrator being appointed has not
dealt with the matter or given views on
the matter.
• A certification to this effect as per
annexure- XVI shall be taken from
Arbitrators also
• However, proceedings or award will not
be invalid merely on this ground.
QUALIFICATION OF ARBITRATOR
ANNEXURE-XVI
Reference Para 64.(3)
Certification by Arbitrators appointed under Clause 63 & 64 of Indian Railways General Conditions of Contract
1. Name:
2. Contact Details:
3. Prior experience (Including Experience with Arbitrations):

4. I do not have more than ten on-going Arbitration cases with me.

5. I hereby certify that I have retired from Railways w.e.f. _____ and empanelled as Railway Arbitrator as per
‘The Arbitration and Conciliation Act- 1996’.

6. I have no any past or present relationship in relation to the subject matter in dispute, whether financial,
business, professional or other kind.
Or
I have past or present relationship in relation to the subject matter in dispute, whether financial, business,
professional or other kind. The list of such interests is as under:

7. I have no any past or present relationship with or interest in any of the parties whether financial, business,
professional or other kind, which is likely to give rise to justifiable doubts as to my independence or impartiality
in terms of The Arbitration and Conciliation Act-1996.
Or
I have past or present relationship with or interest in any of the parties whether financial, business, professional
or other kind, which is likely to give rise to justifiable doubts as to my independence or impartiality in terms of
The Arbitration and Conciliation Act-1996. The details of such relationship or interests are as under:

8. There are no concurrent Circumstances which are likely to affect my ability to devote sufficient time to the
arbitration and in particular to finish the entire arbitration within twelve months.
Or
There are Circumstances which are likely to affect my ability to devote sufficient time to the arbitration and in
particular to finish the entire arbitration within twelve months. The list of such circumstances is as under:
Grounds for challenge to
Arbitrator (A&C Act)
Section 12
12(1)&(2) Arbitrator shall declare in writing prior to his
accepting appointment and further during proceedings
without delay, any circumstances likely to give rise to
justifiable doubts as to his independence or impartiality.

Note: for guidance refer Fifth schedule of A&C Act

Fifth Sch: item31


The arbitrator had been associated within the past 3 years
with a party or an affiliate of one of the parties in
professional capacity, such as former employee or partener
Grounds for challenge to
Arbitrator (A&C Act)
Section 12
12(3). Arbitrator may be challenged only if

(a) circumstances exist that give rise to


justifiable doubt as to his independence
or impartiality.

(b) He does not possess the agreed


qualifications.
Grounds for challenge to
Arbitrator (A&C Act)
Section 12
12(5). Any person whose relationship, with the parties
or counsel or the subject-matter of the dispute, falls
under any of the categories specified in the Seventh
Schedule shall be ineligible to be appointed as an
arbitrator.

‘Seventh Sch: Arbitrator’s Relationship with Parties.’

Provided that parties may, subsequent to disputes


having arisen between them, waive the applicability of
this sub-section by an express agreement in writing
PROCEEDINGS AND AWARD
GCC CLAUSE 64(3)(d)(i)
Arbitral award to be item-wise, the
sum and reasons. The analysis and
reasons shall be detailed enough so
that award could be inferred there from
PROCEEDINGS AND AWARD
GCC CLAUSE 64(3)(d)(ii), (iii)
• A party may apply for correction of
computational errors, typographical or
clerical error or any other error of similar
nature and the interpretation of a
specific point of award within 60 days of
receipt
• A party may apply within 60 days to
make additional award as to claims
presented in proceeding but not covered
in award.
PROCEEDINGS AND AWARD
• GCC CLAUSE 64(4):
o 3 member Tribunal – any ruling or
award shall be by a majority
o In the absence of a majority, views of
Presiding Arbitrator shall prevail.

• GCC CLAUSE 64(5):


o No interest payable on whole or any
part of award for any period till the
date of award
COST OF ARBITRATION
GCC CLAUSE 64(6)
• The cost of arbitration shall be borne
by respective parties.
• The cost shall include the fee of
arbitrators as per rates fixed by
Railway Board and fee to be borne
equally by both parties, provided
parties sign an agreement in format to
these condition after /while referring
dispute to Arbitrator.
COST OF ARBITRATION
GCC CLAUSE 64(6)
• Fees as per rates fixed by Rly Bd
irrespective of the fact whether the
arbitrator is appointed by Rly or by the
court of law, unless specifically
directed by court otherwise on the
matter
Fee and Emoluments to
Retired Rly Officer
Rly bd Lt. No. 2018/TF/civil/Arbitration Policy dt 12/12/2018

• As per latest instruction of Board-


currently Rly bd’ lt no. 2009/CE-
I/CT/14/Main dt 16/05/2018.
• However as prescribed vide IVth
schedule of A&C Act, in the event AT is
Sole arbitrator, he shall be entitled to
an additional 25% over and above the
fee calculated.
Fee and Emoluments to
Retired Rly Officer
Rly bd Lt. No. 2009/CE-I/CT/14/Main dt 16/05/2018.

"Retired Railway officer while working as an Arbitrator will be entitled


for a fee not exceeding 1% of the total claims, including the. counter
claims subject to minimum of Rs. 40,000 per case per arbitrator and
maximum of Rs. 1,50,000 per case per Arbitrator.

In cases, when award is made within six months from the date the
arbitration tribunal enters into reference, Arbitrator will be entitled for
a fee equal to 1.5% of the total claims, including the counter claims
subject to minimum of Rs. 40,000 per case per Arbitrator and
maximum of Rs. 2,25,000 per case per Arbitrator.

The payment towards arbitration fee shall not be paid in advance.


However, Railway shall ensure payment of arbitration fee to
arbitrators within 30 days of the arbitration award."
PROCEEDINGS AND AWARD
GCC CLAUSE 64(6) (b)

• Sole arbitrator: entitle for 25% extra


fee.

• Arbitrator tribunal entitle to 50% extra


fee if Award is decided within 6
months.
PROCEEDINGS AND AWARD
GCC CLAUSE 64(7)
Appointment of arbitrators and
arbitration proceeding is subjected to
• Provisions of Arbitration and
Conciliation Act, 1996, Rules there
under
• Relevant Para of GCC
• Any Statutory Modification thereof
Section-5 (AA)
Power of courts
No judicial authority shall intervene
unless provided under this part of this Act.
i.e. part-I (section 2 to section 43)

“Court” means the principal civil court of original


jurisdiction in a district, and includes the High
Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the
questions forming the subject matter of the
arbitration if the same had been the subject
matter of a suit, but does not include any civil
court of a grade inferior to such principal Civil
Court, or any Court of Small Causes.
Section-5
Power of court
Judicial intervention include
• S-8: Power to refer matters to
arbitration
• S-9: Interim measures of protection
before or during arbitral proceedings
• S-11: Appointment of arbitrator in
certain events
• S-14: Termination of the mandate of an
arbitrator
• S-27: Assistance in taking evidence
Section-5
Power of court
Judicial intervention
• S-34: Setting aside an award;
• S-36: Enforcement of an award by
way of decree;
• S-37: Appeal from certain orders of
court;
• S-41: Reference of a dispute to
arbitration in insolvency proceedings
Application for setting aside
award - Section-34 (A&C Act)
34(2). Award may be set aside by court on
application only if
a). Party furnishes proof that
• A party was under certain incapacity or
• Arbitration agreement is not valid under law
• Party was not given notice of appointment of
arbitrators or of proceedings, or was otherwise
unable to present his case
• Tribunal dealt with disputes not contemplated by or
beyond its jurisdiction or scope
• Composition of tribunal or arbitral procedure
was not in accordance with agreement of the parties
Application for setting aside
award - Section-34 (A&C Act)
34(2)(b) If court finds that

(i) The subject matter was not capable of


settlement by arbitration under law
(Matrimonial matters, testimony matters,
insolvency matters, guardianship matters,
criminal matters, charitable trust MRTP matters,
dissolution/winding of company)
( Matters refers to morality, status and public
policy)
Application for setting aside
award - Section-34 (A&C Act)

34(2)(b)(ii) Award is in conflict with


public policy of India

(Making of award was induced, or affected


by fraud, or corruption or was in violation
of section 75- confidentiality & Section 81-
award based on views expressed during
conciliation)
Application for setting aside
award - Section-34 (AA)
34(3). Application for setting aside to be made
within 3 months (extendable by one more month
by court) of receiving the award from Tribunal by
the party or disposal of request on award, if any,
by Tribunal

34(4). On request of a party, Court may adjourn


the proceedings and give opportunity to the
Tribunal to resume proceedings or to take such
action, which may eliminate the grounds for
setting aside the award
Section-36 (A&C Act)
Implementation of award
Where time for making application to
set aside the award has expired or court
has refused the application u/s 34,
award shall be enforced under CPC
1908 in the same manner as if it were a
decree of the court
Arbitrator has no power to award interest

 Clause 31(7) (a) of A&C Act: Unless otherwise


agreed………
 GCC clause:
 16(3)- No interest will be payable upon the EM and SD
or amounts payable to the contractor.
 52- . It is agreed term that …contractor will have no
claim for interest or damages.. Withholding or retention.
 64(5)-
 Clause 28(3)of A&C Act : while deciding award,
tribunal take into account the terms of contract.
 HC/SC judgement.
GCC Cl.16(3) – INTEREST
PAYMENT
JUDGMENT OF GUWAHATI HIGH COURT
• Order dt. 19.6.02 in Arbitration Appeal
filed by Union of India through
N.F.Rly/Con-vs-major V.P.Najhawan
(Retd.),contractor

• Honourable Court has upheld the


Railways’ contention that the Arbitrator
has no jurisdiction to grant interest.
GCC Cl.43(2) – NO CLAIM
CERTIFICATE

JUDGMENT OF KOLKATA HIGH


COURT-Division Bench of HC, in
Ambica Const.-vs-U.O.I., A.P. No.
193 of 2001, has upheld

• The validity of Clause 43(2) and


has set aside the award
published by the Arbitrator.
Important points for Executive/
Respondents
 Prepare tender Schedule / conditions /
document with due care.
 Aware of all GCC and special condition of
Contract.
 Maintain all reregisters/records i.e. site order
book, labour/ machine register etc. and
entries should be acknowledged by
contractor's representative.
 Reply on all references received from
contractor covering all issues raised by him.
 Process contractor’s request /claims on extra
items/ variations/ extension of time promptly
Important GCC clause for
Executive/ Respondents
 Clause 4: All notices, communications, reference and
complaints should be in writing .

 Clause 5: The Contractor shall furnish the name, and


address of his authorized agent. All communications and
references shall be deemed to have been duly given to
the Contractor, if delivered to his authorised agent

 Clause 12: The Contractor shall keep a responsible


agent at the works during working hours , when he is
not personally present on the site. And Orders given to
the agent shall be deemed to have the same force as if
they had been given to the Contractor.
Important GCC clause for
Executive/ Respondents
 Clause 19(3): Accepted Programme of Work -To
submit the detailed programme of work in the form of
Bar Chart/PERT/CPM as soon as possible after the date
of receipt of the acceptance letter.

 Clause 43(1): Quarterly statement of Claims -


Contractor shall furnish once in every quarter an account
giving full and detailed particulars of all claims for any
additional expenses and of all extra or additional works
ordered by the Engineer which he has executed during
the preceding quarter.
THANKS