Memorandum of Adjudicator-final1

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Before,
The Adjudicator appointed in terms of Clause 6.1.1. of the General
Conditions of Contract for Ganga Water Supply Package for Barauni
Thermal Power Station, Phase – I (2 x 110 MW) and Phase – II (2 x
250 MW) (Supply-cum-Erection at Barauni, District Begusarai)
In the matter of Adjudication proceeding
Between
1. McNally Bharat Engineering Co. Ltd., a company registered under the
Companies Act, 1956 having its registered office at 4, Mangoe Lane, 7th
Floor, Kolkata – 700 001.
2. Tantia Constructions Ltd., a company registered under the Companies
Act, 1956 having its registered office at 25/27, Netaji Subhas Road,
Kolkata- 700 001 (On the joint request of contractor no. 1 and
employer, noticed vide order dated 9th of September, 2015).
.... Claimants
And
Bihar State Power Generation Co. Ltd. (Earlier Known as Bihar State
Electricity Board), through its Chief Engineer (P&D), Vidyut Bhawan,
Bailey Road, Patna. .... Employer
Name of counsels of Claimants : (1) Mr. Abhishek Kumar,
(2) Ms. Aparna Arun,
(3) Mr. Akshay Amritanshu,
For the Employer : Mr. R.R. Prasad, Adv.
Mr. Justice Akhilesh Chandra, Former Judge, Patna High Court, Patna,
10th day of November, 2015, Patna
Memorandum of Adjudication

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The above Adjudication proceeding has been initiated in terms
of Memo No. 1489 dated 19th August, 2015 issued from the office of the
Appointing Authority in pursuance of order dated 22nd May, 2015, passed
by the Hon’ble Court in CWJC No. 7682 of 2015, taking into
consideration apart from others Clause 6 of the General Condition of
Contract (G.C.C.).
2. On receipt of the above order, immediately vide Order dated
24th August, 2015 parties concerned were directed to be noticed to appear,
file pleadings and proceed for hearing but on 26th August, 2015 through
Memo No. 1536, corrigendum in earlier Office Order was received,
substituting the word “Adjudication” in place of “Arbitration” in para 2 of
the original order.
3. On the date fixed before filing pleadings on 9th of September,
2015 on the joint request made on behalf of the parties on record, claimant
no. 2 namely M/s Tantia Construction Ltd. was also ordered to be noticed
to the same effect.

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4. On 16th of September, 2015, pleadings on behalf of claimant no.
1 was filed and claimant no. 2 adopted the same asserting no separate
pleadings is required to be filed on his behalf.
5. On 5th of October, 2015, pleadings on behalf of the Employer
was filed but rejoinder to the same could be filed on behalf of claimant
only on 27th of October, 2015. Meanwhile vide order dated 9th of October,
2015 itself both the sites were directed to be specific on certain points in
writing with supporting materials. The employer was to be specific about
clearance/sanction from Indian Oil Corporation (IOC) as well as Indian
Railway with respect to different works. Besides to be further specific
about finality of the locations for construction, connecting routs and the
same being free from all encumbrances etc. Simultaneously, the claimants
were required to be specific about their intention to further carry over the
work, methodology and the maximum period to discharge their liabilities.
On behalf of Employer, reply was filed on 26th of October, 2015 but on
behalf of contractor, simultaneous with rejoinder on 27th October, 2015.

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6. The relevant undisputed facts in the instant matter is that, on
behalf of Employer for the project known as Ganga Water Supply Package
for BTPS Extension Project for Barauni Thermal Power Station, Phase – I
(2 x 110 MW) and Phase – II (2 x 250 MW) (Supply-cum-Erection at
Barauni, District Begusarai) at Barauni. Tenders were invited from the
competent companies qualifying the terms and conditions for the same as
enumerated in Clause 3 of Bid Data Sheet (BDS).
7. Claimant no. 1 appeared as bidder and claimant no. 2 associated
claimant no. 1 and then meeting the required qualification as enumerated
in Clause 3.1.2 stood qualified, and did the needfulls.
8. The Employer entered into agreement/contract with claimant no.
1 on 03.07.2012 and as per General Conditions of Contract (GCC), project
under Phase –I was to be completed by 3rd January, 2015 whereas of
Phase – II by 3rd July, 2014 itself, but at the same time in view of Clause
3.6 which reads as such:
“3.6 Construction of the Contract

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3.6.1 The Contracts to be entered into between the Employer and
the successful bidder shall be as under :
-- 'First Contract' for Ex-works supply of all the Plant and
Equipment including mandatory spares.
-- 'Second Contract' for providing all services i.e. loading, inland
transportation for delivery at site, inland transit insurance,
unloading, storage, handling at site, installation, insurance
covers other than inland transit insurance, testing and
commissioning including carrying out guarantee tests in
respect of all the Plant and Equipment supplied under the
'First Contract' and all other services specified in the
Contract Documents.
3.6.2 The award of separate Contracts shall not in any way dilute
the responsibility of the Contractor for the successful
completion of the Facilities as per Contract Documents and
a breach in one Contract shall automatically be construed as
a breach of the other Contract(s) which will confer a right on
the Employer to terminate the other Contract(s) also at the
risk and the cost of the Contractor.”
Thus, both the aforesaid contracts for the all practical purposes
may be treated as of one.
9. It is also not in dispute that the project could not be completed
within stipulated period and as per the Employer various request by way

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of reminder etc. to expedite and complete the project, nothing could be
done and under compelling circumstances, finding the negligence on the
part of the contractor/claimants, vide letter no. 278 dated 11th May, 2015.
The Employer issued a notice of termination to the contractor under
Clause 42.2 of the General Conditions of Contract (GCC).
10. On the other hand, as per the claimants, the delay in execution
of the project under contract was due to various latches on the part of the
Employer and making request by the claimants for extension of the period
as well as to refer the matter fixing the responsibilities behind such delay
to the Adjudicator were completely ignored and the contract was
terminated.
11. Whereon claimant no. 1 file CWJC No. 7682 of 2015 before the
Hon’ble High Court, Patna. By final order dated 22.05.2015 said
termination was quashed and set aside, consequently, the present
proceeding.

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12. Here it would not be out of place to mention which is also not in
dispute that while appointing the Adjudicator in terms of Clause 6.01.01
of General Conditions of Contract (GCC), which reads as such:
“If any dispute of any kind whatsoever shall arise between the
Employer and the Contractor in connection with or arising out
of the Contract, including without prejudice to the generality of
the foregoing, any question regarding its existence, validity or
termination, or the execution of the Facilities—whether during
the progress of the Facilities or after their completion and
whether before or after the termination, abandonment or breach
of the Contract—the parties shall seek to resolve any such
dispute or difference by mutual consultation. If the parties fail
to resolve such a dispute or difference by mutual consultation,
then the dispute shall be referred in writing by either party to
the Adjudicator, with a copy to the other party.”
That no attempt appears made by the parties to resolve the
disputes or differences by mutual consultation, consequently, neither any
home-work was done nor any details of dispute was communicated nor
any materials indicating claim/counter claim were served but period to

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conclude the proceeding within 28 days as provided in the Clause
06.01.02 of General Conditions of Contract (GCC) was referred, however,
immediately all concerned were ordered to be noticed and the proceeding
proceeded in the manner referred to above, meanwhile, the period to
conclude was also by mutual consent of the parties, extended till 10th
November, 2015 but after completing the pleadings enclosed with the
documents, actual hearing could commence only on 2nd November, 2015.
13. On the basis of the materials available, including the
contents in Para-8 of claim applications as well as Para-50 of written
statement on behalf of the Employer coupled with the submissions made
the only points for adjudication is as:
“Whether the delay caused in due progress of the
projects under contract is due to any latches on the part of the
contractors or the employer or by both and the contract is
liable to be terminated? And whether the parties should
proceed with the project work to be completed within
reasonable extended period with consequential revised
facilities to be inter se decided/agreed upon taking into

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consideration the related relevant conditions already
enumerated in General Conditions of Contract (GCC) ?”
14. Shri S.D. Sanjay, learned senior counsel on behalf of the both
claimants, vehemently submitted that the project under hand is not the
joint venture of the claimants, rather than claimant no. 2 M/s Tantia
Construction Ltd is simply associated with claimant no. 1 but in the view
of filing of required joint undertaking, it is equally responsible for the
latches, if any, committed by the Bidder (claimant no. 1) and at no point of
time claimant no. 2 deviated from its responsibility nor either of the
claimants are responsible for the delay caused in due progress rather from
the very beginning, there was non-cooperation from the Employer, place
for office etc. was also not provided at the earliest opportunity the
documents designs furnished on behalf of the claimants were also not
cleared by the Project Manager (N.T.P.C.) within stipulated period at
various stages. Locations have been changed, furthermore, the majority of
the sites were not free from encumbrances. The lands were neither
acquired nor due permission from the authorities concerned were taken in

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time. The claimants had to suffer much even on financial score, their bills
were also not cleared in time in spite of its due submission, alternative
methodology for Intake Well which was necessitated under compelling
circumstances (change of location etc.) which was placed in the meeting
and was being further proceeded. Considering all such aspect on behalf of
the claimants, request was made to extend the period to complete the
project etc. but without adhering to all such aspect, the Employer appears
terminating the contract under Clause 42.2 of G.C.C. Of course, the same
has been quashed but only after invoking the jurisdiction of the Hon’ble
High Court, Patna, by the contractor.
15. On the other hand, learned counsel Shree Rajeev Ranjan Prasad
representing Employer submits that right from beginning, the claimants
who are joint venture did not act as per terms of the contract. They were
not prompt to maintain time schedule, the documents were presented
much beyond time and that too vague. Several documents are set to be
presented by them under different categories, no work was done even
where there was no hurdle from any corner. They appears not keen in

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completing the projects well within the schedule, furthermore, claimant
no. 2 appears left associating claimant no. 1 i.e. nothing but the breach of
contract which alone entitles the Employer to terminate the Contract but
the Employer shown much tolerance at each and every occasion intended
to and co-operated with the Bidder to complete the project and when all
remains ineffective, had no option left but to opine that the claimants are
not competent enough to proceed with and complete the project. Had they
been competent enough, they could have completed the projects at least to
the extent, it could have been without any required permission from other
authorities, and clearance of sites etc.
16. I have heard the learned counsels at length, perused the
pleadings submitted by the parties alongwith the documents including
general and special conditions of contract, bidding documents which
includes invitation for bids (IFB), instruction to bidders (ITB) etc.
17. Admittedly, McNally Bharat Engineering Co. Ltd. was the
bidder and stood qualified with association of M/s Tantia Constructions

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Ltd. for better appreciation. It is relevant to reproduce here the qualifying
requirements for bidders as contemplated under Clause 3 of Bid Data
Sheet (BDS) as well as Clause 6 of DIFB as follows:
“6.0 QUALIFYING REQUIREMENT FOR BIDDERS
In addition to the satisfactory fulfilment of the requirements
stipulated under Section ITB (Instruction to Bidders), the
following shall also apply:
6.1.0 The bidder who wishes to participate in the bidding shall
satisfactorily establish that he fulfills the qualifying
requirements stipulated here under as per Clause 6.1.1 or 6.1.2
as the case may be and as per Clause 6.2.0:
6.1.1 The Bidder should have executed the following works within the
preceeding seven
(7) years reckoned as on date of bid opening:
(i) (a) Civil & structural works of pump house, pump sumps
involving deep excavation, de-watering, concreting and
(b) Concreting of 13000 cum in any one (1) year in one (1)
or cumulative of two (2) concurrently running contracts.
(ii) At least one work of sinking of concrete well. The least
lateral dimension of the well should have been 7 m and the least
depth of sinking should have been 20 m below ground. The
ground level for the purpose of well sinking shall be bed level

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for river/water body and natural ground level for open land
areas.
6.1.2 Bidder who meets the qualifying requirement of only one of the
clause 6.1.1(i) or 6.1.1(ii) above, can also participate, provided
he associates with a firm who meets the requirements of clause
6.1.1 (ii) or 6.1.1(i) above as the case may be, such that the
bidder and his associate together fully meet the requirement of
clause 36.1.1 (i) and 6.1.1 (ii).
In such case, bidder shall furnish undertaking jointly executed
by him and his associate for the satisfactory performance of
civil works as per the format enclosed in the bid documents.
This joint deed of undertaking shall be submitted along with the
bid, failing which the bidder shall be disqualified and his bid
shall be rejected. In case of award, the associate will be required
to furnish an on demand bank guarantee of value for 2% (two
percent) of contract price of Ganga Water Supply Package in
addition to contract performance security to be furnished by
bidder. “
6.2.0 (a) to (g)..........
“6.3.0 Notwithstanding anything stated above, the Employer reserves
the right to assess the capabilities and capacity of the Bidder /
his collaborators /associates / subsidiaries / group companies to
perform the contract, should the circumstances warrant such
assessment in the overall interest of the Employer.”

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18. Admittedly, the bidder furnished joint undertakings as required
under Clause 6.1.2/3.1.2 of DIFB/BDS and contract agreement no. 3 and 4
were executed on 30th July, 2012 between the Employer and McNally
Bharat Engineering Co. Ltd. The contract price is Rs. 31,70,17,600/- and
Rs. 83,89,50,000/-, respectively besides such other sums as may be
determined in accordance with terms and conditions of the contract.
19. Entire submissions regarding whether ongoing project is under
joint venture or otherwise looses its force in view of Clause 3.4 of Bid
Data Sheet (BDS) which specifically states:
“Whether JVs are permitted : No”
Further in Clause 1.1 of the General Conditions of Contract
(GCC), the word “Contractor” has been defined as such:
““Contractor” means the person(s) whose bid to perform the
Contract has been accepted by the Employer and is named as
such in the Contract Agreement, and includes the legal
successors orpermitted assigns of the Contractor.”

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20. And vide Clause 2 of Special Conditions of Contract, the words
“joint venture or consortium” in General Conditions of Contract (GCC),
Clause 3.10 stands deleted and said Clause 3.10 of General Conditions of
Contract (GCC) read as such:
“3.10 Joint Venture or Consortium
If the Contractor is a joint venture or consortium of two or more
firms, all such firms shall be jointly and severally bound to the
Employer for the fulfillment of the obligations under the
Contract and shall designate one of such firms to act as a leader
with authority to bind the joint venture or consortium. The
composition or the constitution of the joint venture or
consortium shall not be altered without the prior consent of the
Employer.”
21. There is no dispute towards the fact that the contractor and its
associate are bound by the joint undertakings submitted by them at the
time of bidding in terms of required qualifications for the bidders and they
are liable to face the consequences jointly or severely.

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22. Before further proceedings with other contentions so advanced
here, it would be relevant to examine the responsibilities of the contractors
and Employer which have been well defined respectively in Clause 9 and
10 of General Conditions of Contract (GCC) reproduced below:
“9. Contractor’s Responsibilities
9.1 The Contractor shall design, manufacture (including
associated purchases and/or subcontracting), install and
complete the Facilities and carry out the Guarantee tests
with due care and diligence in accordance with the
Contract.
9.2 The Contractor confirms that it has entered into this
Contract on the basis of a proper examination of the data
relating to the Facilities (including any data as to boring
tests) provided by the Employer, and on the basis of
information that the Contractor could have obtained from
a visual inspection of the Site (if access thereto was
available) and of other data readily available to it relating
to the Facilities as at the date twenty-eight (28) days prior
to bid submission. The Contractor acknowledges that any
failure to acquaint itself with all such data and
information shall not relieve its responsibility for properly
estimating the difficulty or cost of successfully
performing the Facilities.
9.3 The Contractor shall acquire in its name all permits,
approvals and/or licenses from all local, state or national

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government authorities or public service undertakings in
the country where the Site is located that are necessary for
the performance of the Contract, including, without
limitation, visas for the Contractor’s and Subcontractor’s
personnel and entry permits for all imported Contractor’s
Equipment. The Contractor shall also acquire all other
permits, approvals and/or licenses that are not the
responsibility of the Employer under GCC Sub-Clause
10.3 hereof and that are necessary for the performance of
the Contract.
9.4 The Contractor shall comply with all laws in force in India.
The laws will include all national, provincial, municipal
or other laws that affect the performance of the Contract
and bind upon the Contractor. The Contractor shall
indemnify and hold harmless the Employer from and
against any and all liabilities, damages, claims, fines,
penalties and expenses of whatever nature arising or
resulting from the violation of such laws by the
Contractor or its personnel, including the Subcontractors
and their personnel, but without prejudice to GCC Sub-
Clause 10.1 hereof.
9.5 Any Plant, Material and Services that will be incorporated
in or be required for the Facilities and other supplies shall
have their origin as specified under GCC. Clause 3.13
(Country of Origin).
10. Employer’s Responsibilities

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10.1 The Employer shall ensure the accuracy of all information
and/or data to be supplied by the Employer as described
in Appendix 6 (Scope of Works and Supply by the
Employer) to the Contract, except when otherwise
expressly stated in the Contract.
10.2 The Employer shall be responsible for acquiring and
providing legal and physical possession of the Site and
access thereto, and for providing possessionof and access
to all other areas reasonably required for the proper
execution of the Contract, including all requisite rights of
way, as specified in Appendix 6 (Scope of Works and
Supply by the Employer) to the Contract Agreement. The
Employer shall give full possession of and accord all
rights of access thereto on or before the date(s) specified
in Appendix 6.
10.3 The Employer shall acquire and pay for all permits,
approvals and/or licenses from all local, state or national
government authorities or public service undertakings in
the country where the Site is located, which such
authorities or undertakings require the Employer to obtain
in the Employer’s name for the execution of the Contract
(they include those required for the performance by both
the Contractor and the Employer of their respective
obligations under the Contract), including those specified
in Appendix 6 (Scope of Works and Supply by the
Employer) to the Contract Agreement.
10.4 If requested by the Contractor, the Employer shall use its
best endeavors to assist the Contractor in obtaining in a

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timely and expeditious manner all permits, approvals
and/or licenses necessary for the execution of the Contract
from all local, state or national government authorities or
public service undertakings that such authorities or
undertakings require the Contractor or Subcontractors or
the personnel of the Contractor or Subcontractors, as the
case may be, to obtain.
10.5 Unless otherwise specified in the Contract or agreed upon
by the Employer and the Contractor, the Employer shall
provide sufficient, properly qualified operating and
maintenance personnel; shall supply and make available
all raw materials, utilities, lubricants, chemicals, catalysts,
other materials and facilities and shall perform work and
services of whatsoever nature, all as specified in
Appendix-6 (Scope of Works and Supply by the
Employer) to the Contract Agreement, to enable the
Contractor to properly carry out Precommissioning,
Commissioning and Guarantee Tests at or before the time
specified in the program furnished by the Contractor
under GCC Sub-Clause 18.2 (Program of Performance)
hereof and in the manner thereupon specified or as
otherwise agreed upon by the Employer and the
Contractor.
10.6 The Employer shall be responsible for the continued
operation of the Facilities after Completion, in accordance
with GCC Sub-Clause 24.9, and shall be responsible for
facilitating the Guarantee Test(s) for the Facilities, in
accordance with GCC Sub-Clause 25.1.

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10.7 All costs and expenses involved in the performance of the
obligations under this GCC Clause 10 shall be the
responsibility of the Employer, save those to be incurred
by the Contractor with respect to the performance of
Guarantee Tests, in accordance with GCC Sub-Clause
25.1.”
23. As stated earlier, owing to some sort of contentions in the
pleadings relating to sites being not free from encumbrances and finality
of locations, lack of sanction from competent authorities and also non-
adherence of the request made by the contractor regarding extension of
time etc., both the sides were directed to be specific on the points and as
per reply of the Employer due clearance from Railway is still awaited as
regard to construction of Desilting Chamber and Piping and Fitting
Electrical Works etc. still carry some hurdle. Steps were on to clear with
slight diversion of routes but owing to present disputes, matter is stand
still, whereas in construction of Intake Well clearance was received vide
letter no. 2482 dated 27.03.2014 but so far the work of P.T. Plant area
inside Boundary Wall of BTPS, everything is clear.

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24. On the other hand the contractor in his reply dated 27.10.2015
expressed his intention to complete remaining works of the project but on
fresh terms and conditions price, time schedule etc. and with regard to
Intake Well, intends to adopt Floating Caisson Methodology, at the same
time instead of being specific on the reply as regard to total time to be
consumed in Para 6, he has asserted 24 months for construction of Intake
Well only excluding monsoon period etc.
25. Undisputedly, the project has been delayed much and not only
in the pleadings but also during arguments by filing documents both the
sides have tried to shift the responsibilities upon other side, mainly on the
ground of non-observations of the responsibilities lying towards them as
per General Condition of Contract (G.C.C.).
26. It is also undisputed that as per Clause 18.2 of General
Condition of Contract (G.C.C.). The work schedule etc. had to be submitted
by the claimant to the Employer/ consultant within 28 days, but same has
been done roughly, after two months the contractor has tried to explain

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such delay, non-provision of space for site office etc. which is according
to him obligatory on the part of the Employer in view of exclusion Clause
2.04.06 of Terminal Point and Exclusion, on the other hand as per the
Employer, it was never obligatory on their part but as good gesture, they
used to provide spaces on rent etc. and it has been done vide order nos. 9
and 14 dated 13.2.2013 and 01.06.2013 but before such allotment of the
quarter etc. work programme in the form of P.E.R.T. Chart normally was
submitted on 17.09.2012, on the basis whereof it is also contended that
had non-availability of space, been genuine problem, it could not have
been submitted at the same time, this much is undisputed that the
contractor, having some other work allotted by BHEL at some distance,
has its own office there on the particular site, in that view of the matter,
irrespective, of the provision for space for site office etc. being obligatory
or non-obligatory but could be provided at belated stage, may be on rent
basis, such delay at initial stage in submission of the work schedule etc.
which has already been ignored and the project proceeded, cannot be now
a relevant factor.

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27. Much arguments have been advanced on behalf of both the sides
relating to time taken in submission of drawings/designs/documents etc.
for approval of both the sides have annexed the charts (the claimant by
way of Annexure 12 series and separately by the Employer during course
of arguments) showing submissions, comments, resubmission after return
approval, pendency etc. but there is nothing to deal each and every item
specifying the causes behind such shortcoming whereas there is specific
provision in General Condition of Clause (GCC) by way of Clause 20.3.5,
however, for proper appreciation entire Clause 20 related with the subject
matter needs to be reproduced hereunder:
“20 Designand Engineering
20.1 Specifications andDrawings
20.1.1 The Contractor shall execute the basic and detailed design and
the engineering work in compliance with the provisions of the
Contract, or where not so specified, in accordance with good
engineering practice.
The Contractor shall be responsible for any discrepancies,
errors or omissions in the specifications, drawings and other
technical documents that it has prepared, whether such

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specifications, drawings and other documents have been
approved by the Project Manager or not, provided that such
discrepancies, errors or omissions are not because of
inaccurate information furnished in writing to the Contractor
by or on behalf of the Employer.
20.1.2 The Contractor shall be entitled to disclaim responsibility for
any design, data, drawing, specification or other document, or
any modification thereof provided or designated by or on
behalf of the Employer, by giving a notice of such disclaimer
to the Project Manager.
20.2 Codes and Standards
Wherever references are made in the Contract to codes and
standards in accordance with which the Contract shall be
executed, the edition or the revised version of such codes and
standards current at the date twenty-eight (28) days prior to
date of bid submission shall apply unless otherwise specified.
During Contract execution, any changes in such codes and
standards shall be applied after approval by the Employer and
shall be treated in accordance with GCC Clause 39 (Changes
Originating from Contractor).

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20.3 Approval/Review of Technical Documents by Project
Manager
20.3.1 The Contractor shall prepare (or cause its Subcontractors to
prepare) and furnish to the Project Manager the documents
listed in Appendix 7 (List of Documents for Approval or
Review) to the Contract Agreement for its approval or review
as specified and as in accordance with the requirements of
GCC Sub-Clause 18.2 (Program of Performance).
Any part of the Facilities covered by or related to the
documents to be approved by the Project Manager shall be
executed only after the Project Manager’s approval thereof.
GCC Sub-Clauses 20.3.2 through 20.3.7 shall apply to those
documents requiring the Project Manager’s approval, but not
to those furnished to the Project Manager for its review only.
20.3.2 Within twenty one (21) days after receipt by the Project
Manager of any document requiring the Project Manager’s
approval in accordance with GCC Sub-Clause 20.3.1, the
Project Manager shall either return one copy thereof to the
Contractor with its approval endorsed thereon or shall notify
the Contractor in writing of its disapproval thereof and the

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reasons therefor and the modifications that the Project
Manager proposes.
20.3.3 The Project Manager shall not disapprove any document,
except on the grounds that the document does not comply
with some specified provision of the Contract or that it is
contrary to good engineering practice.
20.3.4 If the Project Manager disapproves the document, the
Contractor shall modify the document and resubmit it for the
Project Manager’s approval in accordance with GCC Sub-
Clause 20.3.2. If the Project Manager approves the document
subject to modification(s), the Contractor shall make the
required modification(s), and upon resubmission with the
required modifications the document shall be deemed to have
been approved.
The procedure for submission of the documents by the
Contractor and their approval by the Project Manager shall be
discussed and finalised with the Contractor.
20.3.5 If any dispute or difference occurs between the Employer and
the Contractor in connection with or arising out of the
disapproval by the Project Manager of any document and/or
any modification(s) thereto that cannot be settled between the

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parties within a reasonable period, then such dispute or
difference may be referred to an Adjudicator for
determination in accordance with GCC Sub-Clause 6.1
(Adjudicator) hereof. If such dispute or difference is referred
to an Adjudicator, the Project Manager shall give instructions
as to whether and if so, how, performance of the Contract is
to proceed. The Contractor shall proceed with the Contract in
accordance with the Project Manager’s instructions, provided
that if the Adjudicator upholds the Contractor’s view on the
dispute and if the Employer has not given notice under GCC
Sub-Clause 6.1.2 hereof, then the Contractor shall be
reimbursed by the Employer for any additional costs incurred
by reason of such instructions and shall be relieved of such
responsibility or liability in connection with the dispute and
the execution of the instructions as the Adjudicator shall
decide, and the Time for Completion shall be extended
accordingly.
20.3.6 The Project Manager’s approval, with or without modification
of the document furnished by the Contractor, shall not relieve
the Contractor of any responsibility or liability imposed upon
it by any provisions of the Contract except to the extent that

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any subsequent failure results from modifications required by
the Project Manager.
20.3.7 The Contractor shall not depart from any approved document
unless the Contractor has first submitted to the Project
Manager an amended document and obtained the Project
Manager’s approval thereof, pursuant to the provisions of this
GCC Sub-Clause 20.3.
If the Project Manager requests any change in any already
approved document and/or in any document based thereon,
the provisions of GCC Clause 39 (Change in the Facilities)
shall apply to such request.”
28. Had either of the side been able to observe the specific
provision relating to disputes on the point relating to submissions of
designs and approvals etc. at appropriate stage with specific and minute
details of the differences, it could have been resolved/adjourned upon in
related terms of the General Condition of Contract (GCC) but nothing
of the kind was done and at this stage also in absence of such
specifications, it is difficult to much embark upon this but it can

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definitely be said that both the sides never cared for redressal of such
issues which is one of the causes of delay in project in hand.
29. Undisputedly, errection of pipe lines have also not been
completed. Admittedly, it is to be done at substantial length and the
contractor asserts that no space for such was provided on one stretch
rather the rout agreed was not free from the encumbrances, lands were
to be acquired from private persons or whereunder encroachment by
some others and that apart no due permission was overtaken from the
competent authorities at appropriate stage as regard to pipe corridor
area relying on Clause 3.01.00 -IV of GTRS for civil works which reads
as such:
”Pipe corridor area for relying the pipe line may be made
available in segments and contractor is required to work at
many fronts at a time at locations for which necessary
approach roads from the nearest existing routs needs to be
constructed by the contractor for which no extra payment
shall be made by the Employer.”

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30. It is also contended on behalf of the claimants on basis of the
averments made in Para 22 of the rejoinder to the written statement
filed on behalf of the Employer relying on Annexure 16 series that after
start of work relating to pipe lines they had to change the routs roughly
after nine months at the instance of the Employer that period of nine
months besides the cost accrued were wasted.
31. But as regard to removal of encroachments or land
acquisitions etc. are concerned some work is yet to be completed on the
part of Employer and the rout is also to be diverted, for which proposal
are yet to be finally processed and approved as is evident from the
averments made by the Employer in response to the queries as stated
earlier.
32. With respect to work relating to P.T. Plant Area inside the
boundary wall of BTPS. It is stated in Para 9 -XIV of the written
statement of the Employer that the contractor could not complete the
works even within the Plant Area in available clear front, within the

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contract period but as per the contractor, the delay was caused due to
non approval of drawings and certificates changes in Finish Ground
Level (FGL) after 12 months i.e. dated 03.07.2012 initially the design
was approved but subsequently, it was changed in Technical Committee
Meeting (TCM) – VI, on 12.6.2013 much argument was advanced on
behalf of the Employer that earlier approved designs were on basis of
Finish Ground Level (FGL) 47.5 meters but submitted by the contractor
itself which was when found in consonance with the survey report
reduced to 45 meters but there is nothing on record to clarify how and
under what circumstances, earlier the drawings were approved on basis
of Finish Ground Level (FGL) 47.5 meters, if at all, it was erroneously
submitted by the contractor, and it has travelled from category- 3 to
category- 1 consuming time but all of a sudden change took place
causing further expenses and time to be taken in redesigning etc.,
further it is also not denied that there was strike etc. in the offices of
Employer on several occasions for which the contractor cannot be
blamed.

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33. Much arguments have been advanced with respect to
construction of Intake Well which according to both the sides is most
important work and since Tantia Constructions Ltd. having expertise for
such work associated with the contractor.
34. At the very initial stage as is admitted by of the parties that
some objections were raised by Inland Waterways Authority of India,
(IWAI) since no permission was obtained earlier, consequently, nothing
substantive could be done on this front, however, required permission
could be obtained only through letter no. 2482 dated 27th March, 2014
from Inland Waterways Authority of India, (IWAI), Patna. But it is the
height when in Para 21 of written statement, it is averted that earlier the
Employer was not aware of requirement of such permission, however,
for 21 odd months, no work on this front was possible.
35. It is undisputed that earlier this Intake Well was to be
constructed by Coffer Dam Methodology but subsequently, in view of
the permission obtained by Inland Waterways Authority of India

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(I.W.A.I.), its locations was changed and brought a bit nearer to the
bank of river Ganga, immediately on being aware of such change of
location, the contractor trough E-mail dated 21.03.2014 requested for
certain changes in methodology and engineering etc. as per new
location, the issue appears discussed in the meeting held on 11th April,
2014 at BTPS, Barauni amongst officers of B.S.P.G.C.L., B.T.P.S.,
N.T.P.C. and M.B.E.C.L. and it was observed that the same may be
modified on certain conditions, if accrues in the river bed at the time of
construction etc. and it was committed by the constructor to start the
construction of Island / Coffer Dam from last week of September, 2014
positively and at the same time McNally Bharat Engineering Co. Ltd.
was to submit revised designs/drawings of approach bridge protection
of river bank etc. at the earliest.
36. However, due to full flowing river, having water level 23
meter having velocity compelled the contractor finding itself unable to
construct Coffer Dam and also at the relevant time there was lack of
contractor having adequate experiences besides other available reasons

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referring in letter no. MBE/BSEB/(W020)JR026 dated 19th September,
2014 requested the Employer for due changes in methodology which
according to the contractor was only solution to solve the problem.
37. On the same day the issue was discussed as is evident from
minutes (Annexure 4) in the meeting under the chairmanship of Chief
Secretary, Government of Bihar, and it was directed that McNally
Bharat Engineering Co. Ltd. to submit the detail report and proposal
regarding the same to M/s N.T.P.C., (Project Consultant), with
intimation to BSPGCL within the week, against which the comments
shall be given by the N.T.P.C. within ten days. Thereafter, future course
of action shall be decided in joint meeting between the representative of
MBECL, BSPGCL and N.T.P.C. Simultaneously McNally Bharat
Engineering Co. Ltd. was also to expedite the work at site, failing
which strict action may be taken against them.
38. The contractor immediately through E-mail on 22.12.2014
complied with the direction and submitted due engineering and

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methodology to be applied with such as construction of Intake Well by
Floating Caisson Methodology.
39. The issue was then discussed in the meeting held on 5th
January, 2015 at N.T.P.C. E.O.C. Noida, wherein alongwith the
authorities of BSPGCL, N.T.P.C. and MBECL with Tantia’s consultant
was also present and vide resolution no. 3, it was reiterated that they
should go with the approved methodology as the change methodology
will result in delay in construction of Intake Well at this stage.
However, M/s McNally Bharat Engineering Co. Ltd. necessitated to go
for Caisson Sinking Method instead of completing through Coffer Dam
Methodology. In view of non-availability of experience, contractor for
construction of Coffer Dam in floating river water, M/s McNally Bharat
Engineering Co. Ltd. informed that Floating Caisson Methodology will
have advantages over Coffer Dam Methodology of such location and
the same shall be elaborated in the detailed change methodology, thus,
vide resolution nos. 4 and 5 respectively itself resolved.

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“4 – M/s MBE shall submit detailed changed methodology
considering the following aspects/limitation, which have not been
covered in the submitted brief changed methodology and after site
visit by M/s Tantia.
- Impact on Design 7 Construction of Intake Well.
- Risk analysis w.r.t. present proposal.
- Detailed Schedule of Various Activities involved.
- Experience of M/s Tantia for proposed Caission Sinking
Well.
- Overall Time Period vis-a-vis Requirement of Project.
- No Additional issues whatever shall be raised including
Land by M/s MBE for completion of Intake works.
- No Financial Implication will be admissible on account of
change in methodology including for the work carried out
so far.
- No Additional Approval/Permission will be required from
any Statutory
Authority including Inland Water Ways Authority.
- Contingency arrangement in case of any slippage in
schedule on any account to be provided by M/s MBE.
“5. - The revised proposal to be submitted by M/s McNally
Bharat Engineering Co. Ltd. and M/s Tantia Constructions
Ltd. by 14.01.2015. Further, the above proposal shall be
discussed/detailed presentation at Patna, Bihar State Power
Generation Company Ltd. office on 19.01.2015.”
Consequently, fresh proposal etc. was submitted and is still
under process. It is neither rejected nor accepted till date.

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40. On basis of averment made at Para 20 of written statement on
behalf of Employer, it is contended by learned counsel, Shri Rajeev
Ranjan Prasad that the contractor shown his bonafide and could have
been able to complete the work and at the place there was no hindrance
at all. The Employer would have certainly consider the delay, if any
accrued, due to non-availability of the land or any other things but in
this case the contractor was not able to take up the work of Intake Well
because of its associate’s alleged non-availability of experienced
contractor etc. to proceed with construction of Coffer Dam. There may
be the only conclusion that the associate has left the contractor, who
alone is not competent to discharge the obligations under the contract.
41. But in view of the steps taken by the contractor at the earliest
on being aware of change of location for construction of Intake Well,
requesting change of methodology, though the same was initially not
acceptable but finally contractor was asked to submit another proposal,
on basis of such proposed changes etc., it is now difficult to accept that
intention of the contractor was not good, if at all, the interpretation and

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opinion of the Employer was against the moment, it is noticed by him
that the associate has left the contractor, all work could have
immediately been suspended in terms of Clause 41 of the General
Condition of Contract (GCC) which reads as such:
“41. Suspension
41.1 The Employer/ Project Manager may, by notice to the
Contractor, order the Contractor to suspend performance of
any or all of its obligations under the Contract. Such notice
shall specify the obligation of which performance is to be
suspended, the effective date of the suspension and the
reasons therefor. The Contractor shall thereupon suspend
performance of such obligation (except those obligations
necessary for the care or preservation of the Facilities) until
ordered in writing to resume such performance by the Project
Manager/ Employer.
If, by virtue of a suspension order given by the Project
Manager/Employer, other than by reason of the Contractor’s
default or breach of the Contract, the Contractor’s
performance of any of its obligations is suspended for an
aggregate period of more than ninety (90) days, then at any
time thereafter and provided that at that time such
performance is still suspended, the Contractor may give a
notice to the Project Manager requiring that the Employer
shall, within twenty-eight (28) days of receipt of the notice,
order the resumption of such performance or request and

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subsequently order a change in the facilities in accordance
with GCC Clause 39 (Change in the Facilities), excluding the
performance of the suspended obligations from the Contract.
If the Employer fails to do so within such period, the Contractor
may, by a further notice to the Project Manager, elect to treat
the suspension, where it affects only a part of the Facilities, as
a deletion of such part of the facilities in accordance with
GCC Clause 39 (Change in the Facilities) or, where it affects
the whole of the Facilities, as termination of the Contract
under GCC Sub-Clause 42.1 (Termination for Employer’s
Convenience).
41.2 If
(a) the Employer has failed to pay the Contractor any sum due under
the Contract within the specified period, has failed to approve
any invoice or supporting documents without just cause
pursuant to Appendix 1 (Terms and Procedures of Payment)
to the Contract Agreement, or commits a substantial breach of
the Contract, the Contractor may give a notice to the
Employer that requires payment of such sum, requires
approval of such invoice or supporting documents, or
specifies the breach and requires the Employer to remedy the
same, as the case may be. If the Employer fails to pay such
sum, fails to approve such invoice or supporting documents
or give its reasons for withholding such approval, or fails to
remedy the breach or take steps to remedy the breach within
fourteen (14) days after receipt of the Contractor’s notice or
(b) the Contractor is unable to carry out any of its obligations
under the Contract for any reason attributable to the

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Employer, including but not limited to the Employer’s failure
to provide possession of or access to the Site or other areas in
accordance with GCC Sub-Clause 10.2, or failure to obtain
any governmental permit necessary for the execution and/or
completion of the Facilities; then the Contractor may by
fourteen (14) days’ notice to the Employer suspend
performance of all or any of its obligations under the
Contract, or reduce the rate of progress.
41.3 If the Contractor’s performance of its obligations is
suspended or the rate of progress is reduced pursuant to this
GCC Clause 41, then the Time for Completion shall be
extended in accordance with GCC Sub-Clause 40.1, and any
and all additional costs or expenses incurred by the
Contractor as a result of such suspension or reduction shall be
paid by the Employer to the Contractor in addition to the
Contract Price, except in the case of suspension order or
reduction in the rate of progress by reason of the Contractor’s
default or breach of the Contract.
41.4 During the period of suspension, the Contractor shall not
remove from the Site any Plant and Equipment, any part of
the Facilities or any Contractor’s Equipment, without the
prior written consent of the Employer.”
And subsequently, on final adverse conclusion about conduct and
intention of the contractor, the contract could have been terminated, taking into
consideration Clause 42 of General Condition of Contract which for better
appreciation reads as such:

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“42. Termination
42.1 Termination for Employer’s Convenience
42.1.1 The Employer may at any time terminate the Contract for
any reason by giving the Contractor a notice of termination
that refers to this GCC Sub- Clause 42.1.
42.1.2 Upon receipt of the notice of termination under GCC Sub-
Clause 42.1.1, the Contractor shall either immediately or
upon the date specified in the notice of termination:
(a) cease all further work, except for such work as the
Employer may specify in the notice of termination
for the sole purpose of protecting that part of the
Facilities already executed, or any work required to
leave the Site in a clean and safe condition
(b) terminate all subcontracts, except those to be
assigned to the Employer pursuant to paragraph
(d)(ii) below
(c) remove all Contractor’s Equipment from the Site,
repatriate the Contractor’s and its Subcontractors’
personnel from the Site, remove from the Site any
wreckage, rubbish and debris of any kind, and leave
the whole of the Site in a clean and safe condition
(d) In addition, the Contractor, subject to the payment
specified in GCC Sub-Clause 42.1.3, shall
(i) deliver to the Employer the parts of the
Facilities executed by the Contractor up to the
date of termination
(ii) to the extent legally possible, assign to the
Employer all right, title and benefit of the

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Contractor to the Facilities and to the Plant and
Equipment as at the date of termination, and, as
may be required by the Employer, in any
subcontracts concluded between the Contractor
and its Subcontractors
(iii) deliver to the Employer all non-proprietary
drawings, specifications and other documents
prepared by the Contractor or its Subcontractors
as at the date of termination in connection with
the Facilities.
42.1.3 In the event of termination of the Contract under GCC Sub-
Clause 42.1.1, the Employer shall pay to the Contractor the
following amounts:
(a) the Contract Price, properly attributable to the parts
of the Facilities executed by the Contractor as of the
date of termination
(b) the costs reasonably incurred by the Contractor in
the removal of the Contractor’s Equipment from the
Site and in the repatriation of the Contractor’s and its
Subcontractors’ personnel
(c) any amounts to be paid by the Contractor to its
Subcontractors in connection with the termination of
any subcontracts, including any cancellation charges
(d) costs incurred by the Contractor in protecting the
Facilities and leaving the Site in a clean and safe
condition pursuant to paragraph (a) of GCC Sub-
Clause 42.1.2

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(e) the cost of satisfying all other obligations,
commitments and claims that the Contractor may in
good faith have undertaken with third parties in
connection with the Contract and that are not
covered by paragraphs (a) through (d) above.
42.2 Termination for Contractor’s Default
42.2.1 The Employer, without prejudice to any other rights or
remedies it may possess, may terminate the Contract
forthwith in the following circumstances by giving a notice
of termination and its reasons therefor to the Contractor,
referring to this GCC Sub-Clause 42.2:
(a) if the Contractorbecomes bankrupt or insolvent, has
a receiving order issued against it, compounds with
its creditors, or, if the Contractor is a corporation, a
resolution is passed or order is made for its winding
up (other than a voluntary liquidation for the
purposes of amalgamation or reconstruction), a
receiver is appointed over any part of its undertaking
or assets, or if the Contractor takes or suffers any
other analogous action in consequence of debt
(b) if the Contractor assigns or transfers the Contract or
any right or interest therein in violation of the
provision of GCC Clause 43 (Assignment).
(c) if the Contractor, in the judgement of the Employer
has engaged in corrupt or fraudulent practices in
competing for or in executing the Contract.
For the purpose of this Sub-Clause :

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"corrupt practice" means the offering, giving, receiving or soliciting
of any thing of value to influence the action of a public official in
the procurement process or in contract execution.
"fraudulent practice" means a misrepresentation of facts in order to
influence a procurement process orthe execution of a contract to the
detriment of the Employer and includes collusive practice among
Bidders (prior to or after bid submission) designed to establish bid
prices at artificial non-competitive levels and to deprive the
Employer of the benefits of free and open competition.
42.2.2 If the Contractor
(a) has abandoned or repudiated the Contract
(b) has without valid reason failed to commence work on the
Facilities promptly or has suspended (other than pursuant
to GCC Sub-Clause 41.2) the progress of Contract
performance for more than twenty-eight (28) days after
receiving a written instruction from the Employer to
proceed
(c) persistently fails to execute the Contract in accordance
with the Contract or persistently neglects to carry out its
obligations under the Contract without just cause
(d) refuses or is unable to provide sufficient materials,
services or labor to execute and complete the Facilities in
the manner specified in the program furnished under GCC
Clause 18 (Program of Performance) at rates of progress
that give reasonable assurance to the Employer that the
Contractor can attain Completion of the Facilities by the
Time for Completion as extended then the Employer may,
without prejudice to any other rights it may possess under

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the Contract, give a notice to the Contractor stating the
nature of the default and requiring the Contractor to
remedy the same. If the Contractor fails to remedy or to
take steps to remedy the same within fourteen (14) days
of its receipt of such notice, then the Employer may
terminate the Contract forthwith by giving a notice of
termination to the Contractor that refers to this GCC Sub-
Clause 42.2.
42.2.3 Upon receipt of the notice of termination under GCC Sub-
Clauses 42.2.1 or 42.2.2, the Contractor shall, either
immediately or upon such date as is specified in the notice
of termination,
(a) cease all further work, except for such work as
the Employer may specify in the notice of
termination for the sole purpose of protecting
that part of the Facilities already executed, or any
work required to leave the Site in a clean and
safe condition
(d) below
(c) deliver to the Employer the parts of the Facilities
executed by the Contractor up to the date of
termination
(d) to the extent legally possible, assign to the
Contractor to the Works and to the Plant and
Equipment as at the date of termination, and, as

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(e) deliver to the Employer all drawings,
specifications and other documents prepared by
the Contractor or its Subcontractors as at the date
of termination in connection with the Facilities.
42.2.4 The Employer may expel the Contractor, and complete the
Facilities itself or by employing any third party. The
Employer may, to the exclusion of any right of the
Contractor over the same, take over and use with the
payment of a fair rental rate to the Contractor, with all the
maintenance costs to the account of the Employer and with
an indemnification by the Employer for all liability
including damage or injury to persons arising out of the
Employer’s use of such equipment, any Contractor’s
Equipment owned by the Contractor and on the Site in
connection with the Facilities for such reasonable period as
the Employer considers expedient for the supply and
installation of the Facilities. Upon completion of the
Facilities or at such earlier date as the Employer thinks
appropriate, the Employer shall give notice to the
Contractor that such Contractor’s Equipment will be
returned to the Contractor at or near the Site and shall
return such Contractor’s Equipment to the Contractor in
accordance with such notice. The Contractor shall
thereafter without delay and at its cost remove or arrange
removal of the same from the Site.

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42.2.5 Subject to GCC Sub-Clause 42.2.6, the Contractor shall be
entitled to be paid the Contract Price attributable to the
Facilities executed as at the date of termination, the value
of any unused or partially used Plant and Equipment on the
Site, and the costs, if any, incurred in protecting the
Facilities and in leaving the Site in a clean and safe
condition pursuant to paragraph (a) of GCC Sub-Clause
42.2.3. Any sums due to the Employer from the Contractor
accruing prior to the date of termination shall be deducted
from the amount to be paid to the Contractor under this
Contract.
42.2.6 If the Employer completes the Facilities, the cost of
completing the Facilities, including procurement of balance
plant & equipment by the Employer shall be determined.
If the sum that the Contractor is entitled to be paid, pursuant
to GCC Sub- Clause 42.2.5, plus the reasonable costs
incurred by the Employer in completing the Facilities,
exceeds the Contract Price, the Contractor shall be liable
for such excess.
If such excess is greater than the sums due to the Contractor
under GCC Sub-Clause 42.2.5, the Contractor shall pay the
balance to the Employer, and if such excess is less than the
sums due to the Contractor under GCC Sub- Clause 42.2.5,
the Employer shall pay the balance to the Contractor.
The Employer and the Contractor shall agree, in writing, on
the computation described above and the manner in which
any sums shall be paid.

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42.3 Termination by Contractor
42.3.1 If
(a) the Employer has failed to pay the Contractor any sum
due under the Contract within the specified period, has
failed to approve any invoice or supporting documents
without just cause pursuant to Appendix 1 (Terms and
Procedures of Payment) of the Contract Agreement, or
commits a substantial breach of the Contract, the
Contractor may give a notice to the Employer that requires
payment of such sum, requires approval of such invoice or
supporting documents, or specifies the breach and requires
the Employer to remedy the same, as the case may be. If
the Employer fails to pay such sum, fails to approve such
invoice or supporting documents or give its reasons for
withholding such approval, fails to remedy the breach or
take steps to remedy the breach within fourteen (14) days
after receipt of the Contractor’s notice,
or
(b) the Contractor is unable to carry out any of its
obligations under the Contract for any reason attributable
to the Employer, including but not limited to the
Employer’s failure to provide possessionof or access to the
Site or other areas or failure to obtain any governmental
permit necessary for the execution and/or completion of the
Facilities which the Employer is required to obtain as per
provision of the Contract or as per relevant applicable laws

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of the country, then the Contractor may give a notice to the
Employer thereof, and if the Employer has failed to pay the
outstanding sum, to approve the invoice or supporting
documents, to give its reasons for withholding such
approval, or to remedy the breach within twenty-eight (28)
days of such notice, or if the Contractor is still unable to
carry out any of its obligations under the Contract for any
reason attributable to the Employer within twenty eight
(28) days of the said notice, the Contractor may by a
further notice to the Employer referring to this GCC Sub-
Clause 42.3.1, forthwith terminate the Contract.
42.3.2 The Contractor may terminate the Contract forthwith
by giving a notice to the Employer to that effect, referring
to this GCC Sub-Clause 42.3.2, if the Employer becomes
bankrupt or insolvent, has a receiving order issued against
it,compounds with its creditors, or, being a corporation, if a
resolution is passed or order is made for its winding up
(other than a voluntary liquidation for the purposes of
amalgamation or reconstruction), a receiver is appointed
over any part of its undertaking or assets, or if the
Employer takes or suffers any other analogous action in
consequence of debt.
42.3.3 If the Contract is terminated under GCC Sub-Clauses
42.3.1 or 42.3.2, then the Contractor shall immediately
(a) cease all further work, except for such work as
may be necessary for the purpose of protecting that

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part of the Facilities already executed, or any work
required to leave the Site in a clean and safe
condition
(d)(ii)
(c) remove all Contractor’s Equipment from the Site
and repatriate the Contractor’s and its
Subcontractor’s personnel from the Site
(d) In addition, the Contractor, subject to the payment
specified in GCC Sub-Clause 42.3.4, shall
(i) deliver to the Employer the parts of the
Facilities executed by the Contractor up to the
date of termination
(ii) to the extent legally possible, assign to the
Contractor to the Facilities and to the Plant and
Equipment as of the date of termination, and, as
(iii) deliver to the Employer all drawings,
specifications and other documents prepared by
the Contractor or its Subcontractors as of the

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date of termination in connection with the
Facilities.
42.3.4 If the Contract is terminated under GCC Sub-Clauses
42.3.1 or 42.3.2, the Employer shall pay to the Contractor
all payments specified in GCC Sub- Clause 42.1.3, and
reasonable compensation for all loss or damage sustained
by the Contractor arising out of, in connection with or in
consequence of such termination.
42.3.5 Termination by the Contractor pursuant to this GCC Sub-
Clause 42.3 is without prejudice to any other rights or
remedies of the Contractor that may be exercised in lieu of
or in addition to rights conferred by GCC Sub-Clause 42.3.
42.4 In this GCC Clause 42, the expression “Facilities executed”
shall include all work executed, Installation Services
provided, anÿ or all Plant and Equipment acquired (or
subject to a legally binding obligation to purchase) by the
Contractor and used or intended to be used for the purpose
of the Facilities, up to and including the date of
termination.
42.5 In this GCC Clause 42, in calculating any monies due from
the Employer to the Contractor, account shall be taken of
any sum previously paid by the Employer to the Contractor
under the Contract, including any advance payment paid
pursuant to Appendix 1 (Terms and Procedures of
Payment) to the Contract Agreement.”

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42. But nothing of the kind was done rather the required proposal
submitted by the contractor is yet pending disposal. It is undisputed that
referring the exigencies due to changes taking place increase of cost, pending
bills etc. including possibility of more time to be taken to complete the project,
the contractor has requested the Employer by writing a few letters Annexure 6
series, 21, 23, 24 series etc. seeking release of payment, extension of time and
facilities etc. in terms of Clause 40 of General Condition of Contract (GCC)
which reads as such:
“40. Extension of Time for Completion
40.1 The Time(s) for Completion specified in the SCC shall be
extended, if the Contractor is delayed or impeded in the
performance of any of its obligations under the Contract by
reason of any of the following:
(a) any Change in the Facilities as provided in GCC Clause 39
(Change inthe Facilities)
(b) any occurrence of Force Majeure as provided in GCC
Clause 37 (Force Majeure), unforeseen conditions as
provided in GCC Clause 35 (Unforeseen Conditions), or
other occurrence of any of the matters specified or referred
to in paragraphs (a), (b) and (c) of GCC Sub-Clause 32.2

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(c) any suspension order given by the Employer under GCC
Clause 41 (Suspension) hereof or reduction in the rate of
progress pursuant to GCC Sub-Clause 41.2 or
(d) any changes in laws and regulations as provided in GCC
Clause 36 (Change in Laws and Regulations) or
(e) any default or breach of the Contract by the Employer,
specifically including failure to supply the items listed in
Appendix 6 (Scopeof Works and Supply by the Employer)
to the Contract Agreement, or any activity, act or omission
of any other contractors employed by the Employer or
(f) any other matter specifically mentioned in the Contract;
by such period as shall be fair and reasonable in all the
circumstances and as shall fairly reflect the delay or
impediment sustained by the Contractor.
40.2 Except where otherwise specifically provided in the Contract,
the Contractor shall submit to the Project Manager a notice of a
claim for an extension of the Time for Completion, together
with particulars of the event or circumstance justifying such
extension as soon as reasonably practicable after the
commencement of such event or circumstance. As soon as
reasonably practicable after receipt of such notice and
supporting particulars of the claim, the Employer and the
Contractor shall agree upon the period of such extension. In the
event that the Contractor does not accept the Employer’s
estimate of a fair and reasonable time extension, the Contractor

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shall be entitled to refer the matter to the Adjudicator, pursuant
to GCC Sub-Clause 6.1 (Adjudicator).
40.3 The Contractor shall at all times use its reasonable efforts to
minimize any delay in the performance of its obligations under
the Contract.
40.4 Documents for consideration of Time Extension The following
documents shall form the principal basis for consideration of
Time Extension pursuant to GCC clause 40 with or without
levy of liquidated damages pursuant to GCC Clause 26 and
settlement of extra claims during the execution of contract:
1. The joint recordings in the weekly meetings register.
2. Records of Technical Coordination Meetings.
3. Records of Conract Review Meetings.
4. Written notices issued by the "Project Manager" or his
authorised representative to Contractor in the relevant period.
But unfortunately, majority of such requests are still pending
with the Employer who even while issuing notice to terminate the contract
failed to appreciate.
43. In order to further substantiate the submissions on behalf of the
Employer, Annexure X the copy of experience certificate of Tantia
Constructions Ltd. issued by East Central Railway on 27.07.2010 alongwith

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drawing for Intake Well for tender purpose in connection with present project
as well as construction methodology has been filed and it is submitted that the
Tantia Constructions Ltd. has shown completion of work by Coffer Dam
Methodology under more difficult situation than that of the situation shown in
the letter filed by the contractor on 19th September, 2014, when the water level
at the site was about 23 meters and they had no experienced contractor to install
Geo Bag etc. and construction of the Coffer Dam in this situation, according to
learned counsel representing Employer, the expertise of Tantia Constructions
Ltd. also comes under doubt.
44. On the other hand, it is contended by Shri S.D. Sanjay that whatever
experience certificate of Tantia Constructions Ltd. is filed and required in the
present project is for the purpose of installation of Sinking Well /Intake Well
but related civil work is to be completed by the bidder i.e. McNally Bharat
Engineering Co. Ltd. and at the relevant time owing to the current under water
level, it was not possible for the available petty contractor involved in civil
work to complete the job and it was considered proper owing to the overall

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situation at the site at relevant time to change the methodology from Coffer
Dam system to Caisson Methodology.
45. On going through the papers Notes no. 5 on the design submitted at the
time of tender for Intake Well which reads as such:
“All equipments like valves, fittings instruments shown in the
drawing are indicative and bidders shall provide the equipment as
per system requirement and civil work for the same all be
included by the bidders”
46. It appears that civil work was to be completed by the bidder and as per
discussion made earlier in terms of General Condition of Contract, the bidder is
none other than McNally Bharat Engineering Co. Ltd. i.e. the contractor.
47. The papers relating to the methodology also indicates that only after
proper construction of Island i.e. Coffer Dam for which separate drawing was
filed, as is evident from Clause 5.1 of the methodology submitted (but the same
is neither available with Annexure X nor any explanation offered) Sinking Well
can be installed. Thus, again the submissions made by Shree Rajeev Ranjan
Prasad cannot be accepted.

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48. Much arguments has also been advanced that Tantia Constructions Ltd.
in spite of appearance in the present proceeding, after notice, did not file any
pleadings nor denied the allegations levelled against it, in writing, relating to its
not properly discharging the obligation towards construction of Intake Well and
doubt raised against the experience certificate etc. but those submission also
appears not tenable since M/s Tantia Constructions Ltd. is neither bidder nor
contractor as defined in General Condition of Contract, rather simple associate
of bidder /contractor and even contract was entered into only between the
Employer i.e. BSPGCL and McNally Bharat Engineering Co. Ltd. but at the
same time by filing of joint undertaking as required to fulfil qualifying
requirement for the bidder, referred earlier the said associate is bound by the
terms and conditions made therein and is liable jointly or severely in the event
of any default or latches on the part of the contractor. Apart from this though as
per the terms and conditions enumerated in General Conditions of Contract
(made available subsequently), there appears no need even to notice the
associate in the present proceeding but the same was done on oral submission
made by the parties on record. However, the associate appeared through the

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same set of lawyers as of McNally Bharat Engineering Co. Ltd. and since is
now well aware of entire proceedings also again makes him liable for the
consequence the contractor is to bear.
49. Before concluding, it is again relevant to mention that though the
contract was awarded in the month of July, 2012 but neither all sites were clear
nor due required permissions were obtained by the Employer from competent
authorities nor the lands were either acquired or encroachments were removed,
rather such due process at the end of the Employer, is still going on, as is
admitted position evident apart from other the reply given by the Employer of
the queries made during present proceeding. In that view of the matter in spite
of making every efforts and completing the remaining part of the project by the
contractor it cannot be said till date is complete project. Undisputedly, the
project carries huge public money and as repeatedly submitted by learned
counsel, Shree Rajeev Ranjan Prasad, more than 23 crores rupees have already
been paid to the contractor, on the other hand as contended by leaned counsel,
Shree S.D. Sanjay, substantial amount is still due to the Employer against the
work already done that goes to show that in spite of laps of more than three

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years time and substantial investment of public money the project is yet to be
completed. At the same time, the contractor also cannot be relieved from
owing the responsibility of the delay caused. The contractor, ought to have
proceeded to complete his job with substantial speed but as discussed above
there was delay in presentation of work schedule submissions of designs and
connected documents etc. and even completing the work wherever there was no
obstruction and lastly asking for change of methodology in installation of
Intake Well etc.
50. It is also noticed that none of the side was keen even to observe the terms
and conditions enumerated in General Conditions of Contract. Had they been
prompt and acted upon accordingly with due care and caution present stage
could have been avoided.
51. However, since the contractor even before present proceeding has
requested the Employer for extension of period etc. to complete the project and
also during proceeding has opted, to do so, of course, at every such occasion he
has inserted some conditions. The requests made by the contractor are yet not
disposed off, specifically and even after disposal of writ petition in the month

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of May 2015, the contractor sought permission from the Employer to remove
the machinery and other articles which are still undisputedly available at the
site at this juncture it can also be said that since order of termination of the
contract by the Employer was quashed by the Hon’ble Court. The parties were
not prevented from requesting eachother to mutually settle the dispute, proceed
with and complete the project. Had they been opted so, wastage of further time
could have also been avoided.
52. Now from the discussions made above it is crystal clear that progress of
the due project is hampered due to the negligence and latches committed on
part of both the sides i.e. Employer and contractor but at this stage the contract
is not liable to be terminated blaming each other in view of the involvement of
huge money, possibility of completion of the remaining part of the project on
modifying time and price etc. by mutual consent at the earliest, if all concerned,
co-operating each other proceed with on war footing, discharging their
responsibilities as enumerated in General Conditions of Contract without
wasting time any more. Accordingly the issue involved is replied.

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53. It is, therefore, directed that both the sides will make aware of, the either
side about their intention positively by the end of this month either to move
against the decision following the relevant Clause of General Condition of
Contract or to proceed with the project.
54. In the event they intend to complete the project, they are required to
immediately assess the remaining part of the project separately or jointly,
remove hurdles in the way and simultaneously modify the period to complete
the project including contract price etc. by mutual consent taking into
consideration relevant provisions of General Conditions of Contract without
wasting any time and proceed with the project and complete the same well
within agreed period. The contractor is also directed to ensure participation of
its associate i.e. Tantia Constructions Ltd. in the meeting organises in
connection with construction of Intake Well as well as wherever it is required.
(Akhilesh Chandra, J.)
Adjudicator
Typed by Adnan Alam, Steno. Former Judge,
Patna High Court, Patna
Dated 10.11.2015

Memorandum of Adjudicator-final1

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