Page No.# 1/13 GAHC010132032013 2026:GAU-AS:3484 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Arb.A./21/2013 UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER CONSTRUCTION, NF RAILWAY, MALIGAON, GUWAHATI 781011 VERSUS M/S. GAUTAM CONSTRUCTION CO. A PARTNERSHIP FIRM HAVING REGISTERED OFFICE AT BILASHPARA, DIST. DHUBRI. Advocate for the Petitioner : SC, NF RLY, MRS.U CHAKRABORTY,MSK KALITA,MS.M CHATTERJEE,MS.M PHUKAN Advocate for the Respondent : MR.S K MEDHI, ,,,MR. K GUPTA, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 07.03.2026 (K.R. Surana, J) Heard Ms. U. Chakraborty, learned Senior Special Counsel for the appellant. None appears on call for the respondent. 2. By filing this appeal under Section 37 of the Arbitration and Page No.# 2/13 Conciliation Act, 1996, the appellant has assailed (a) the Arbitral Award dated 26.04.2005, and (b) judgment and order dated 21.12.2012, passed by the learned Additional District Judge No.2, Kamrup (Metro), Guwahati in Misc.(Arb) Case No. 14 of 2005, by which the Arbitral Award dated 26.04.2005, passed by the Three Member Tribunal was partly allowed. 3. The learned Arbitral Tribunal was appointed to arbitrate over the dispute between the respondent and the N.F. Railway in terms of letter dated 14.10.2004, issued by the General Manager (Construction), N.F. Railway, Maligaon. 4. The brief case of the appellant is that for the purpose of construction of Bogibeel Bridge, a huge quantity of boulders was required for the purpose of river training works, as stated in the Arbitral Award. However, from the contents of the contract agreement No. CON/BOGIBEEL/15 dated 24.10.2002, the name of the work is stated as "Quarrying and supplying 75000 CUM (approx) man-size boulders weighing between 40 kg to 70 kg and stacking at Zone No.2 at stacking yard at Bogibeel Bridge site near Dhemaji on North Bank of Brahmaputra River”. 5. According to the learned Arbitrators, the work components consisted of two items in the schedule and the item No.1 was the main item comprising the supply of boulders, which accounted for 99% of the contract agreement value and the item No.2 was for the purpose of stacking the boulders. 6. After award of the contract dated 08.07.2002, the respondent started the work and requested for the stacking yard at Zone No.2 as indicated in the map attached to the contract agreement. However, the appellant had failed to handover the site, mainly because the approach road was not ready. Page No.# 3/13 Accordingly, at the insistence of the respondent, an alternative site No.1 near Kulajan was handed over during the last week of January 2003, after a lapse of about 7 (seven) months. 7. The projected claim of the respondent was that the alternative site No.1 could accommodate only 15,000 cubic metre quantity and the appellants could not handover the site and after completing supply of 15,000 cubic metre of boulders, the respondent started asking for the additional site and the second alternative site was handed over on 27.01.2004. It is projected that the respondent had deployed men and machinery and after having stacked 15,000 cubic metre boulders in April 2003, stacked a further quantity about 10,000 cubic metre boulders in the same stacking yard by May 2003. Accordingly, it is projected that a total supply of 25,000 cubic metre boulders were made in the alternative stacking yard No.1 by March 2003. Therefore, the claim, among others, was for delay in handing over the stacking yard and therefore the respondent claimed idle charges in respect of men and machinery deployed. 8. The second dispute raised by the respondent was regarding the supply of item No.1. It was projected that as per the Schedule No.1, the supply of boulders was to be made from nominated river quarries of boulder size 20 to 30 cm and 40 to 70 kg in weight. However, as per the field report, there were no boulders which are in the range of 20 to 30 cm that weighed even 40 kg and not to speak of 40 to 70 kg in weight. Accordingly, boulders which are weighing less than 40 kg were supplied and the appellant had paid a reduced rate of 15% by invoking Clause 8.0 of the Contract Agreement. The respondent had claimed full payment for all the boulders which are measuring 20 to 30 cm. 9. The learned Arbitral Tribunal, as against claim no.1 regarding payment due against arbitrarily deducted void items, arrived at the conclusion that the Page No.# 4/13 respondents had proved beyond doubt that they were entitled to receive payment based on the measurement of gross quantity and accordingly, it was directed that the appellant should release all payments deducted on this account. 10. In respect of claim no.2, which relates to reimbursement of the wrongly deducted amount for supply of undersized boulders, the learned Tribunal took note of the admission made by the appellants in its para-wise reply that owing to the circumstances that no boulders of size up to 30 cm were weighing more than 40 kg in weight and boulders of size more than 30 cm were weighing 40 to 70 kg, had accepted the supplies but at a reduced rate of 85% of the accepted rate and arrived at the conclusion that the respondent was entitled to reimbursement of the full amount which had been deducted in the name of undersize. 11. In respect of claim no.3 relating to idle charges of site staff from 08.07.2002 to 31.01.2003, the learned Tribunal, on consideration of the materials placed before it, directed that the idle charges should be paid from 16.10.2002 to 31.01.2003, i.e. for 108 days for 7 categories, i.e. (1) Manager, (2) Site Accountant, (3) Supervisor, (4) Watchman, (5) Camp Cook, (6) Main Camp Rent, and (7) Labour, amounting to Rs.2,93,550/-. 12. As regards claim no.4 regarding claim of idle charges of site staff from 01.06.2003 to 31.12.2003, the learned Arbitral Tribunal took note of the fact that the original stack area had become motorable in December 2003 and thereafter, it became available for stacking of boulders, and directed payment of idle charges from 16.10.2003 to 31.12.2003, i.e. for 77 days for the following 9 categories, i.e. (1) Manager, (2) Site Engineer, (3) Site Accountant, (4) Store Keeper, (5) Supervisor, (6) Watchman, (7) Camp Cook, (8) Main Camp Rent, and Page No.# 5/13 (7) Labour, amounting to Rs.3,06,975/-. 13. In respect of claim no.5 relating to claim of idle charges of machineries and vehicles from 08.07.2002 to 31.12.2003, the learned Tribunal directed the idle charges to be paid from 16.10.2002 to 31.01.2003, i.e. 108 days for the following machineries, i.e. (1) JCB excavator cum loader, (2) Trucks for high banking of boulders, and (3) Trucks for carrying boulders, amounting to Rs.33,48,000/-. 14. In respect of claim no.6 relating to idle charges of machineries and vehicles from 01.06.2003 to 31.12.2003, the learned Tribunal directed payment of idle charges for the period from 16.10.2003 to 31.12.2003, i.e. 77 days for the following machineries, i.e. (1) JCB Excavator Loader, and (2) Tata Trucks, amounting to Rs.30,80,000/-. 15. In respect of claim no.7 in for underutilization of quarries at Arunachal Pradesh, the learned Tribunal arrived at the conclusion that the underutilized amount was Rs.10.00 lakh, which was a direct loss of the respondent and accordingly, the learned Arbitral Tribunal directed that the respondent be reimbursed a sum of Rs.10.00 lakh to the respondent. 16. In respect of claim nos.8, 9 and 10, as the claims were not referred to the learned Arbitral Tribunal by the appointing authority, those claims were held to be beyond their jurisdiction and therefore, not considered. 17. Accordingly, in a summary of the award declared, the learned Tribunal, by referring to each of the 10 (ten) heads of claims amounting to Rs.5,32,31,181/-, declared the award to the extent of Rs.1,63,73,018/-, which is summarized as under: Page No.# 6/13 Claim No. Description of Claim Amount claimed Award declared 1. Amount withhold by Railway retaining 20% payment from C.C. Bill : I, II, III & IV. Rs 66,02,680/- Rs 66,02,680/- 2. Amount withhold by Railway for under size boulders from CC Bill : II, III & IV. Rs 16,57,813/- Rs 16,57,813/- 3. Claim for idle charges of site staff from 08.07.02 to 31.01.03. Rs 19,24,410/- Rs 3,77,550/- 4. Claim for idle charges of site staff from 01.06.03 to 31.12.03. Rs 17,72,300/- Rs 3,06,975/- 5. Claim for idle charges of machinaries & vehicles from 08.07.02 to 31.01.03. Rs 1,90,44,000/- Rs 33,48,000/- 6. Claim for idle charges of machinaries & vehicles from 01.06.03 to 31.12.03. Rs 1,65,60,000/- Rs 30,80,000/- 7. Claim for under utilization of quarries of Arunachal Pradesh. Rs 25,00,000/- Rs 10,00,000/- 8. Interest on arbitrarily deducted Rs 24,37,498 Rs Nil 9. Enhanced rate for boulder supplied after original date of completion Rs 1,02,69,463 Rs Nil 10. Loss on profit Rs 1,03,21,191 Rs Nil Total: Rs.5,32,31,181/- Rs.1,63,73,018/- 18. It was further directed that the appellant was to arrange payment to the respondent within 40 days from the date of declaration of the award, failing which the respondent would be entitled to interest at the rate of 10% per annum. 19. Aggrieved by the Arbitral Award dated 26.04.2005, the appellant preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside a part of the award in respect of claim nos.3 to 7, amongst others, on the ground that the said part of the award is not tenable and maintainable as Clause 17A(iii) of the General Conditions of the Contract forbids any compensation and/or damages for whatsoever reason if the Railways fails in providing site or due to delay etc., and further by stating that Page No.# 7/13 the arbitrators had failed to adhere to the said Clause and accordingly, it was submitted that the Arbitral Award dealt with disputes not contemplated or not falling within the terms of the submission to arbitration or that the decision contains matters beyond the scope of submission to arbitration. 20. The learned Additional District Judge No.2, Kamrup (Metro), Guwahati, by an order dated 21.12.2012, referred to the 10 (ten) issues which arose in the proceedings before the learned Arbitral Tribunal and specifically took note of Clause 17A(iii) of the General Conditions of Contract, which according to the appellant forbids payment of compensation. 21. The said learned Court, on revisiting the decision of the learned Tribunal, affirmed the finding of the learned Tribunal as regards the non availability of man-sized river boulders of 20 to 30 cm to have weight between 40 to 70 kg. and therefore, arrived at a conclusion that it was practically impossible for the contractor to fulfil the criteria set by the appellants at the same time while collecting and supplying boulders as per item no.1 of the schedule of items, specifically took note of the reducing of the payment to 85% of the accepted rates as per Clause 8.0 of the contract agreement for supplying underweight boulders. Accordingly, agreeing with the view taken by the learned Arbitrators that the range of size had made the schedule defective and non- workable and therefore, the Court found the respondent to be entitled to the amount which was deducted from the boulders regarded as undersized and held that there was no scope to set aside the Arbitral Award on this account. 22. The said learned Court, in respect of claim nos.3 and 4, concurred with the finding of the learned Arbitral Tribunal on idle charges for staff and machineries for the period of 108 days and 77 days respectively, and also referred to the finding that after the first alternative stacking yard could Page No.# 8/13 accommodate only 15,000 cubic metre of boulders, which was fully utilized, the respondent has started asking for delivery of an additional site for stacking of boulders and that the appellant had failed to provide the additional site. Therefore, the Court affirmed the finding of the learned Arbitral Tribunal as correct while awarding idle charges for the site staff as well as machineries, equipment and vehicles for the said two periods of 108 days and 77 days respectively and accordingly, affirmed the award in respect of claim nos.3 to 6. 23. In respect of the underutilization of the quarries at Arunachal Pradesh, the said learned Court, on appreciation of the facts and evidence, affirmed the finding of the learned Arbitrator in awarding 10.00 lakh as cost for underutilization of the quarry site at Arunachal Pradesh. 24. In respect of claim at serial no.8 towards claim of interest, the learned Court found the decision of the arbitrator to be erroneous on the ground that the Arbitral Tribunal had denied to adjudicate on the claim of the contractor on this account, yet, awarded interest and therefore finding in respect of claim no.8 was set aside, while the decision of the Arbitral Tribunal so far as it related to the claim of the respondent and claim nos.1 to 7, 9 and 10, the same were affirmed. 25. The learned Senior Special Counsel for the appellant had referred to the memo of appeal and it was submitted that the Arbitral Award warranted interference of this Court as the learned Arbitral Tribunal had failed to interpret and examine the Contract Agreement and the General Conditions of Contract, 1998, which are binding on the appellant as well as the respondent, and awarded compensation on account of delay in providing the site to stack boulders. In this regard, by referring to Clause 17A(iii), it is submitted that it is clearly mentioned that the contractor will not be entitled to compensation for Page No.# 9/13 any delay in handing over the land, etc. It is submitted that the supply of boulders was the obligation of the respondent and there was no agreement with the appellant to provide land for stacking of the boulders. It is submitted that as per her instructions, it was only because of request made by the respondent that the land was provided by the appellant for stacking of the boulders and therefore, as that part of the gesture of the N.F. Railway to provide land was not covered by the contract. Therefore, it is submitted that the appellants are not liable to compensate the respondent on account of delay in providing the site. 26. It is submitted that Clause 17A(iii) of the General Conditions of Contract, 1998 was made a part of the agreement by virtue of Clause 2.2.1 of the Additional Special Conditions of the Contract. 27. Examined the materials available on the record and considered the submissions made by the learned Senior Standing Counsel for the appellants. 28. It may be stated that the present appeal was filed on 15.03.2013 and pursuant to amendment being allowed, the amended memo of appeal was filed on 28.05.2015. 29. It is noticed from the award passed by the Arbitral Tribunal on 26.04.2005, that it contains no mention about the nature of pleading made before the said learned Tribunal by the appellant. Moreover, the nature of pleadings made before the Arbitral Tribunal is not found to be made a part of the memo of appeal. On an examination of the records, it is noticed that there is no prayer recorded in any order passed by this Court to call for the records of the learned Arbitral Tribunal. However, the records of the learned Additional District Judge No.2, Kamrup [now Kamrup (M)], Guwahati had been called for and available. Page No.# 10/13 30. From the materials available on record, it cannot be said that the Clause 17A(iii) of Clause 2.2.1 was specifically urged by the appellant before the Arbitral Tribunal. It is not one of the ground of the present appeal that the learned Arbitral Tribunal failed to take notice of Clause 17A(iii) despite the same being produced before the said learned Tribunal, supported by pleadings. 31. The Court takes notice of the fact that by filing an affidavit on 23.07.2019, the agreement of works in respect of the respondent and a copy of the General Conditions of Contract has been annexed. All the pages of the Contract Agreement and the entire copy of the General Conditions of Contract and Special Conditions of Contract, prepared by the Engineering Department of the N.F. Railway have not been produced. Therefore, the Court is disinclined to accept an incomplete document as a reliable document in the absence of any statement that the said contract agreement or the General Conditions of Contract and Special Conditions of Contract were produced before the Arbitral Tribunal. The Court also takes notice of the fact that the said affidavit has been sworn and filed by the Special Senior Railway Counsel. For the reasons stated above, the same is not considered and is rejected. 32. At this stage, the learned special Senior Standing Counsel for the N.F. Railway submitted that she be permitted to withdraw this affidavit. 33. The said prayer is allowed. Accordingly, the said affidavit filed on behalf of the appellant no 23.07.2019, available in the file, stands expunged on being withdrawn. 34. Insofar as the claims are concerned, firstly with regard to the non providing of the site for storing the boulders, as referred to hereinbefore, as per the Contract Agreement, the nomenclature of the work is as follows: "Quarrying Page No.# 11/13 and supplying 75000 CUM (approx) man size boulder weighing between 40 kg to 70 kg and stacking at Zone No.2 at stacking yard at Bogibeel Bridge site near Dhemaji on North Bank of Brahmaputra River". Therefore, it is evident from the heading/subject of the Contract Agreement itself that the “place of stacking of the materials” is contained in the description of the agreement as "Stacking yard at Zone No.2 at Bogibeel Bridge site near Dhemaji on north bank of River Brahmaputra". 35. Therefore, if providing of a site is inherent in the Contract Agreement itself, the Arbitral Award has rightly directed compensation for idle charges for men and machinery when the earmarked site for stacking at Zone No.2 at the stacking yard of Bogibeel Bridge was not made available to the respondent. In this case, the providing of site was not an incidental accompaniment to the agreement, rather it was an essential part of the contract. 36. It is not the projected case of the appellant that the respondent was excused from adherence to the contract of keeping men and machinery available at site. Therefore, it is not open to the appellant to make a default and then claim that they will not compensate. If there was a delay in providing the site, the N.F. Railway or the appellants could have excused the performance of that part of the contract which required the respondent to keep the men and machinery available at site. Consequently, the appellant cannot be allowed to take advantage of their own default. 37. In regard to the size and weight of the boulders from 20-30 cm and 40- 70 kg, the Arbitral Tribunal had relied on the field survey, where it was found that no boulder measuring 30 cm was also weighing even 40 kg. 30 cm is the maximum size of the required boulder and the minimum weight is prescribed as 40 kg. Thus, the Arbitral Tribunal had held that both the criteria cannot be Page No.# 12/13 fulfilled simultaneously from the boulders quarried from the quarries nominated by the respondent. This part of the Award had not been dislodged by the appellant by giving any evidence to show that at the nominated quarry, an average boulder of 20-30 cm would having a weight of 40-70 kg. Therefore, the legal maxim “lex non cogit ad impossibilia” meaning that law does not compel the impossible 38. Accordingly, the learned Tribunal had arrived at a finding that the Govt. organization is not suppose to prepare such schedule of works, which is not practically possible to execute. Therefore, the finding of the learned Tribunal directing that the deducted amount be paid by the respondent, cannot be faulted with. 39. As there is nothing on record to show that in respect of any of the claims from claim nos.1 to 7 could be demolished by the appellants by adducing cogent and admissible evidence before the Arbitral Tribunal, in the considered opinion of the Court, no ground has been made out by the appellants for interference with the Arbitral Award. 40. It was submitted that Clause 17A(iii) of the General Conditions of Contract was a part of the agreement by virtue of Clause 2.2.1 of the Special Conditions of Contract. Even if this not in dispute, yet, the appellant was required to plead and prove the same. Even before this Court, the pleadings that were made before the learned Tribunal and the nature of evidence that was led before the learned Arbitral Tribunal is not available to dislodge the Arbitral Award by showing that the learned Arbitral Tribunal had committed perversity in appreciation of the pleadings and evidence. 41. This is not a case where the Arbitral Award could be shown by the Page No.# 13/13 appellant to be contrary to (a) fundamental policy of Indian Law, (b) interest of the Country, (c) justice or morality, or (d) patently illegal. None of the aforesaid exceptions could be shown to be applicable in the present case. No error could be shown from the award itself. Accordingly, no interference is called for against the impugned (a) the Arbitral Award dated 26.04.2005, and (b) judgment and order dated 21.12.2012, passed by the learned Additional District Judge No.2, Kamrup [now Kamrup (M)], Guwahati in Misc.(Arb) Case No. 14 of 2005. 42. Accordingly, the Court does not find any merit in this appeal and accordingly, this appeal stands dismissed. 43. The parties are directed to bear their own cost. 44. The Registry shall send back the records. JUDGE Comparing Assistant