SOC - EWS - 1R Final

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BEFORE
Sri R.Rajamani,
Ex- Commissionerof Railway Safety,
Flat No. 3, Ram Priya AE – 172,
11th Main Road, Ana Nagar,
Chennai – 600040.
………….Presiding Arbitrator
Sri Shiv Kumar,

Retd. General Manager,
N.F.Railway,
Plot No. 9. Block – I, first floor,
Charmwood Village,
Eros Garden Surajkund, Road,
Faridabad–121009.
……………………..Arbitrator
Sri S.R.Chaudhuri,
Retd. General Manager,
East Coast Railway,
EE-118, Flat No. 6,
Salt Lake City, Sector – II,
Kolkata – 700091.
……………………Arbitrator
IN THE MATTER OF:
The Arbitration and Conciliation Act, 1996
AND
IN THE MATTER OF:
Agreement No. EWS -1 (R) for “Construction of
3 (three) Elevated stations at Salt Lake Sector –
V, Karunamoyee and Central Park including

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track supporting viaduct structure of 140 m
length for each station on East-West Metro
Project of KMRCL”
AND
IN THE MATTER OF ARBITRATION
BETWEEN
M/s Simplex Infrastructures Limited., a
company registered under the Indian
Companies Act, having its registered office at
Simplex House, 27, Shakespeare Sarani,
Kolkata – 700017.
…………..
Claimant
-VS-
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Kolkata Metro Railway Corporation Limited (a
Government of India Undertaking), Munshi
Prem Chand Sarani (KMRCL Bhawan),
Kolkata – 700 021
…….Respond
ent
The STATEMENT OF CLAIMS on behalf
of the Claimant abovenamed.
Most respectfully SHEWETH:
1. That the Claimant is engaged in the business of major Civil
Engineering construction activities of specialized nature including
metro railway, station building of metro railway, airport, hydra projects,
massive foundations and construction of highways. The Claimant has
since completed a number of prestigious and time-bound Projects
without any iota of dissatisfaction of any of its clients. The Claimant is
not only a resourceful contractor, but also possess all modern plants
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and equipment and technical personnel of high competency and
experience in the field of execution of Civil Engineering works of divers
nature.
2. That the Respondent had invited tenders, for “Construction of 3
(three) Elevated stations at Salt Lake Sector –V, Karunamoyee and
Central Park including track supporting viaduct structure of 140 m
length for each station on East-West Metro Project of KMRCL” from the
pre-qualified contractors and the Claimant submitted its most
reasonable and economic tender on 08-04-2009. The statements,
positive assertions and representations made expressly and/or by the
implication by the Respondent in the tender documents were
considered to be true and factually correct by the Claimant while
submitting its bid.
3. The Claimant was requested in the negotiation meeting held on
12-05-2009 to offer suitable rebate on quoted rates for both the
tenders. Accordingly, the Claimant vide its letter dated 15-05-2009
(Copy annexed and marked “C-1” at page no. 1 of volume no II) had
condescended to offer rebates in respect of both the tenders subject to
certain conditions as mentioned in the said letter (C-1). The

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Respondent vide its letter dated 18-05-2009 (Copy annexed and
marked “C-2” at page no. 3 of volume no II) had accepted certain
conditions but not all the conditions and called upon the Claimant to
accept the conditions as proposed by the Respondent. The Claimant by
a letter dated 18-05-2009 (Copy annexed and marked “C-3” at page
no. 4 of volume no II) had confirmed the stipulations contained in
Respondent’s letter dated 18-05-2009 (C-2).
4. That the negotiated tender of the Claimant was finally accepted
by the Respondent vide letter dated 23-05-2009 (Copy annexed and
marked “C-4” at page no. 5 of volume no II). The accepted value of
work was Rs.53,09,23,842.00 (Rupees fifty three crore nine lac twenty
three thousand eight hundred and forty two only). In the letter of
acceptance dated 23-05-2009 (“C-4”) the Claimant was directed to
commence the work immediately and the date stipulated for
commencement of work was to be reckoned from 23-05-2009 i.e. from
the date of issuance of the letter of acceptance. In other words, no time
for mobilization was allowed from the date of letter of acceptance before
commencement of the work, which unequivocally suggests that that
the Respondent was equally ready, willing and agreeable to
perform its part of reciprocal obligations in order to enable the

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Claimant to commence the work on 23-05-2009 and to complete
the same within a time frame of 20 months ending on 22-01-2011.
5. That the parties herein entered into a formal agreement on 19-
06-2009 (Copy annexed and marked “C-5” at page no. 27 of volume
no II).
6. That the Claimant craves to set out hereinafter the thumbnail
sketch of the project:-
a) Construction of three nos. elevated stations at Sector – V,
Karunamoyee and Central Park was entrusted to the Claimant by
the Respondent on 23-05-2009 and such construction work
included construction of concrete structural works upto platform
level. The scope of work comprised of construction of piers in
three rows with one row along the central median of the road and
two other rows on either side of the stations at an approximate
distance of 14 meters from the central piers. The sizes of piers
were varying from 900 mm to 1800 mm. the foundation of the
piers was generally on four/six nos. 1200 dia bored cast-in-situ
piles with shaft length varying from 35 m to 45 m and the sub-

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structure involved pile caps of size 5.2 /8.8 m X 5.2. m X 1.8 m.
the construction sequence entailed construction of piers along all
the three rows followed by construction of concourse slab in
longitudinal direction (along the alignment) followed by track
level slab and platform slab together with stair cases and other
ancillary structures. The length of concourse was for 70 m with
average width of 23 m and the length of platform was for 140 m.
b) BRIEF SCOPE OF WORK
The contract involved the following works:-
i) 498 Nos. 1200 mm dia bored cast-in-situ piles of average
depth 36 meter for main piers;
ii) 83 nos. 750 mm dia bored cast-in-situ piles depth 29
meters for entry structures;
iii) 105 nos. pile caps;
iv) 136 nos. of peirs of diameters varying from 900 to 1800
mm;
v) Concourse level slab of an aggregate area of 8.507 sq.m.
against all the three stations together;

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vi) Track/platform level slab of an aggregate area of 8.507
sq.m. against all the three stations together;
vii) 4 nos. cast-in-situ viaducts;
viii) 16 nos. pre cats I – girders;
ix) Internal stair cases together with Entry/Exit structures
plus ancillary structures, UG and OH water tanks etc.
7. Pursuant to the discussion held in the office of the Respondent
on 06-06-2009, the Claimant had submitted its Base Line Programme
on 09-06-2009 (C-7) in terms of clause 10.2 of Special Conditions of
Contract (SCC). It is pertinent to note that such programme was drawn
on the basis of tender stage construction schedule as submitted by the
Claimant. The Claimant once upon called upon the Respondent for
allotment of 5000 sq.m. area in Salt Lake at the earliest to set up
batching plant and other site establishments. The Respondent had
remained conspicuously inert in the matter for a period of about two
months and requested for submission of detailed work programme vide
Respondent’s letter dated 14-08-2009 (C-7 colly). The said letter was
replied by the Claimant vide letter dated 19-08-2009 (C-7 colly)
wherein the Claimant submitted the first revision of the Base Line
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Programme and made it abundantly clear that such revision was
necessitated for the delay in obtaining receivables and preliminary
inputs from the Respondent. As such, the said revised Base Line
Programe was founded on the various inputs received by the Claimant
and/or to be received in future course of time. In an evasive manner
the Respondent vide its letter dated 24-08-2009 (C-7 colly) had stated
that the revised Base Line Programme shows the time for completion
more than twenty three months, when the time stipulated for
completion as per contract was 20 months. As such, the Respondent
requested the Claimant to revise the programme, keeping the time limit
of 20 months and reflecting the interface and access dates pertaining to
other contracts. The Respondent’s letter dated 24-08-2009 (C-7 colly)
was followed by another letter dated 15-09-2009 (C-7 colly) wherein
the Respondent had submitted some specific comments for
incorporating in the Base Line Schedule. Since both the parties were in
quandary regarding availability of inputs and/or receivables from the
Respondent, the Claimant was directed in a meeting held on 14-10-
2009, to draw a rolling programme for a period of three months. In this
connection the Claimant relies on its letter dated 06-11-2009 (C-7
colly) wherein the Claimant reminded the Respondent to issue
approved GAD and AFC drawings for working piles relating to all the
three station locations so that the Claimant could submit the said work
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programme. The Claimant further in its letter dated 13-11-2009 (C- 7
colly) had reiterated the following:-
“--------------we have already mentioned that we shall be able to submit
detail work programme against the said contract only upon receipt of
approved GAD and AFC drawings for working piles for all the three
station locations falling under contract EWS – 1 (R)---------”. The
Claimant however submitted the said three month work programme for
the other package i.e. EWS-2 (R) since AFC drawings for working piles
were partially available for the said project. The Claimant submitted
the second revision of Base Line Programme with its letter dated 09-02-
2010.
8. That notwithstanding the position that the Claimant was
otherwise ready, willing, agreeable and competent to complete the
work, in its entirety, within the stipulated period of completion, the
execution of work had continued inordinately beyond the stipulated
date of completion, grossly on account of delays and defaults on the
part of the Respondent and the work was completed in all respects by
31-05-2012 i.e. with a delay of 16 months beyond the stipulated period
of completion. The Claimant in this regard refers to Respondent’s

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completion certificate issued vide letter dated 21-11-2012-(Copy
annexed and marked “C-6” at page no. 33 of volume II). It shall
appear from the said completion certificate that extension of time was
finally granted upto 31-05-2012 without imposition of liquidated
damages.
9. Broad reasons for delay of the aforesaid period of 16 months
are spelt out hereunder:-
9 (A) Delay in handing over of area of Construction Depot
i) Clause 2.6 of the Notice Inviting Tender, Part – I volume – I
stipulates that the Respondent was to provide a plot of land
measuring 5000 sq.m. to the Claimant for casting yard, batching
plant and other activities. The Claimant had offered rebate for
providing land tro establish batching plant at Salt Lake instead of
Rajarhat area vide Claimant’s letter dated 15-05-2009 (C-1) and
the said stipulation was accepted by the Respondent’s letter
dated 18-05-2009 (C-2). The Claimant was constrained to
remind the Respondent vide letter dated 09-06-2009 (Copy

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annexed and marked “C-7” at page no. 34 of volume no II) to
allot land at Salt Lake as per the agreed terms of the contract.
ii) The said letter was followed by a joint visit by representatives of
both the parties herein and upon such visit the Claimant was
shown the following locations for the said purpose:
a) Subhas Sarobar, beside Eastern Metropolitan Bypass,
opposite Hyatt Hotel, Beleghata, Kolkata.
b) Block – HC, Sector – III, Salt Lake, beside ‘Police Abasan’ &
‘Calcutta Heart Clinic & Hospital and opposite to National
Institute of Homeopathy.
c) Block – GE, Sector – III, Salt Lake, near Girl’s Hostel & Water
Tank No. 12,
iii) The Claimant vide letter dated 12-06-2009 (Copy annexed and
marked “C-8” at page no. 37 of volume no II) inter-alia
requested the plots cited under Sl nos. a) and b) above together
would serve the purpose for the time being.
iv) It would appear from the Claimant’s letter dated 26-06-2009
(Copy annexed and marked “C-9” at page no. 40 of volume no

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II) that the no-objection for setting up of depot was accorded by
the concerned authority after site visit on 23-06-2009.
v) Subsequent to the above, the Claimant had to relocate its Depot
from inside Subhas Sarobar premises due to some unforeseen
occupation of the said location by the Tourism Department to
facilitate taking up some beautification works by them during the
month of August 2010 and this had resulted in reconstruction of
Claimant’s Depot afresh within Salt Lake Stadium complex,
inside IOCL gate involving infructuous expenses and additional
time. This in turn spells out that the Claimant had to remobilize
almost in the midst of the project and this has grossly affected
the progress of work at site. In this regard the Claimant refers to
its letters dated 17-05-2010 (Copy annexed and marked “C-10”
at page no. 41 of volume no II) and 23-08-2010 (Copy
annexed and marked “C-11” at page no. 43 of volume no II).
9 (B) Delay in late handing over of survey control points by the
Respondent.
i) Sub clause 4.14 of General Conditions of Contract (GCC) read
with Sl. No. 8 of Special conditions of Contract (SCC) stipulates

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that GTS bench mark, temporary bench marks and three control
points on all straights and other details shall be handed over by
the Engineer of the Respondent. Setting out is the initial works
for any construction activities and hence the same has to be
given to the Contractor at the start of the project. The Base Line
Programme annexed to the letter dated 09-06-2009 (C-7)
stipulate under ‘Activity ID No. 12’ that the survey station points
should be handed over to the Claimant on 25 th May 2009.
However, inspite of several requests, discussions, communiqués
and follow ups, the Claimant could get the control points only on
01-10-2010 i.e. after a delay of 129 days. Delay in handing over
of survey control points by the Respondent had delayed the entire
activities related to constructions. In this regard the Claimant
refers to its letter dated 10.10.2009 (copy annexed and
collectively marked “C-12” at page no. 44 of volume no II).
9 (C) Delay in issuance of AFC drawings for Test Pile at Central
Park and Karunamoyee Station for initial pile load test:-
Clause no. 4.11 of GCC supplemented with Sl. No. 2 of SCC clearly
obliges the Employer to supply detailed working drawing during
execution of work progressively. As per ‘Activity ID No. 37 of the base

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line programme dated 09-06-2009 (C-7) the Claimant was entitled to
receive the AFC drawings for test pile(s) by 10th June 2009. However,
the same was issued by the Respondent only on 14th September 2009,
i.e. after a delay of 96 days. Thus, delay in issuance of AFC drawings
for Test Piles despite the Claimant’s repeated requests had delayed
planning and procurement of specific tools [compatible with the depth
of the pile bore] & materials, resulting in idling of mobilized resources
as well as delayed commencement of this activity. In this regard the
Claimant refers to the following letters:-
i) Claimant’s letter dated 13.10.2009;
ii) Claimant’s letter dated 22.06.2009;
iii) Claimant’s letter dated 28-07-2009;
iv) Claimant’s letter dated 18-08-2010;
(Copies annexed and collectively marked “C-13” at page no. 49 of
volume no II).
9 (D) Delay in issuance of AFC drawings for Working Piles at
Central Park Station, Karunamoyee station and Sector – V
station:-
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i) AFC drawings pertaining to working piles at Central Park Station
were handed over to the Claimant as late as on 31-12-2009 i.e.
after a delay of 198 days from the date of handing over of such
drawing as per the work programme.
ii) It is further submitted that the station location of Central Park
was shifted from its originally contemplated position as per
tender drawing. Besides, the distance between Grid No. 4 & 5
was also changed from 13.80m to 17.10m and due to the same
the Claimant had to carry out another round of utility detection
work which in turn delayed completion of utility detection and
diversion work at the said station location and also delayed the
commencement of piling work.
iii) Similarly, as per programme the Claimant was to receive AFC
drawing for piles pertaining to Karunamoyee station on 10 th June’
2009 but eventually the same were handed over by the
Respondent on 03rd May, 2010, i.e. after a delay of 321 days.
Consequently, the piling works on central median portion at the
said station location was commenced from onwards 12 th May,
2010.
iv) It is further submitted that the Claimant was issued the drawings
for working piles at the proposed Sector-V station on 27th

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February 2010 and the Claimant had commenced the piling work
at the said station location immediately thereafter i.e. from
onwards 02nd March, 2010. The said delay in issuance of AFC
drawing for working piles had delayed completion of piling work
for the proposed Sector-V station.
In this regard the Claimant refers to the following letters:-
a) Claimant’s letter dated 13.10.2009;
b) Claimant’s letter dated 29.10.2009;
c) Claimant’s letter dated 06.11.2009;
d) Claimant’s letter dated 13.11.2009;
e) Claimant’s letter dated 23.12.2009;
f) Claimant’s letter dated 18.02.2010;
g) Claimant’s letter dated 08.05.2010;
h) Claimant’s letter dated 27.05.2010.
volume no II).
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9 (E)Delay due to non-availability of AFC drawing for pile cap
pertaining to Central Park station, Karunamoyee station and
Sector V station:
i) As per the base line programme (C-7), pile cap drawing(s)
pertaining to Central Park station should have been issued to the
Claimant by 26th June 2009. However, Pile cap drawings for
Central Park station were issued to as late as on 13 th February
2010 i.e. after a delay of 229 days.
ii) Similarly, as per the base line programme, pile cap drawing for
Karunamoyee station were to be issued to the Claimant by 29-06-
2009. However, Pile caps drawing for Karunamoyee station were
issued on 11th May 2010, after a delay of 316 days. Delay in
issuance of AFC drawings and details have adversely affected the
work leading to severe delays and financial losses.
iii)As per the base line programme (C-7) pile cap drawings
pertaining to Sector V station were to be issued by 29-06-2009
but the same were handed over to the Claimant as late as on 29-
03-2010 i.e. after a delay of 273 days.
iv)In this regard the Claimant refers to its following letters:-

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i) Claimant’s letter no. 012/KMRCEWS1/CL/MYCEL/001/VOL-
4/0321 dated 22.04.2010;
ii) Claimant’s letter dated 08.05.2010;
iii) Claimant’s letter dated 24.05.2010.
(Copies annexed and collectively marked “C-14/1” at page no. 91
of volume no II)
9 (F) Delay due to non-availability of AFC drawing for piers:
i) As per the base line programme (C-7), the Respondent was
contractually obliged to hand over the AFC drawings for Piers by
07th July 2009 to the Claimant. However, for the proposed
Central Park station, the same were issued to the Claimant as
late as on 13.02.2010, thereby delaying the activity by 221 days.
ii) Similarly, as per the base line programme, the Respondent was
contractually and/or otherwise bound to supply the AFC
drawings for Piers at Karunamoyee Station and Sector V by 13 th
July 2009. However, drawings for Karunamoyee station were
issued only on 09-06-2010 thereby delaying the activity by 331
days. The first set of drawings pertaining to Sector V station were
issued 0n 04-05-2010 thereby delaying the activity by 295 days.

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b) Claimant’s letter dated 24.05.2010.
of volume no II)
9 (G) Delay due to non-availability of AFC drawings for Pier Caps:
i) As per the baseline programme (C-7) the Claimant was to receive
the AFC drawings for Pier Caps pertaining to Central Park station
by 07-07-2009. However, Pier Cap drawings (R0) for Central Park
station were issued to the Claimant only on 4 th May 2010, i.e. on
passage of 301 days from the date, as mentioned in the baseline
programme. Needless to explain that delayed issuance of AFC
drawing by the Respondent grossly delayed the Pier Cap activities
and the subsequent activities related to the same resulting in
overall shift of completion period.
ii) Similarly, as per the baseline programme, issuance of AFC
drawings for Pier Caps at Karunamoyee Station was envisaged by
13th July 2009. However, Pier Cap drawings were issued only on
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10th June 2010, i.e. after a delay of 332 days from the baseline
programme. Furthermore, as regard to common pier caps at the
proposed Karunamoyee station, the Claimant had to wait for the
2nd stage casting of hammer head after casting of 1 st stage, till the
contractor entrusted with viaduct works completed the launching
of pre-cast segments for the span connecting to the common pier
caps. Such sequence of activities was not envisaged and/or
indicated during tendering stage. The Claimant had completed
the 1st stage casting of the common pier cap at P130 (i.e. K2 pier)
on 27th September, 2010. However, the hammer head portion of
the said common pier cap couldn’t be cast till 15 th November,
2010 owing to pending erection of pre-cast segments of the span
connecting to the common pier cap (K2), by the viaduct
Contractor. The consequences of this stage-wise casting of
common pier caps, which was dependent upon erection of
corresponding viaduct span by the viaduct contractor delayed the
progress of the work. In this regard the Claimant refers to the
Minutes of Meeting held at the CES Centre on 09-10-2010 (copy
annexed and marked “C-14/3” at page no. 99 of volume no
II).
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iii) As per base line programme AFC drawings pertaining to Sector V
station were to be handed over to the Claimant by 13-07-2009
but the same were made over to the Claimant on 04-05-2010 i.e.
after a delay of 295 days.
9 (H) Delay in issuance of AFC Drawings for Superstructure
components by the Respondent pertaining to Central Park station,
Karunamoyee station:
i) As per the baseline programme (C-7), the Respondent was
contractually and/or otherwise bound to issue AFC drawings for
Superstructure (Concourse Slab, Column, Beam etc.) by
21.07.2009. However, the Claimant received the first set of
superstructure drawing only on 30th August, 2010.
ii) It is respectfully submitted that the work was already delayed
due to the reasons enumerated above. It is pertinent to note that
unless the foundation works (Piling works) were completed, the
Claimant could not have proceed with the sub structure (Pile
Caps, Piers) works. Though, based on the availability of site and
drawings, the Claimant had achieved partial progress in
foundation and substructure works, superstructure works were
completely dependent on the completion of the substructure
works. Thus, Superstructure works were already delayed due to

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delayed execution of the foundation and sub structures works,
due to reasons solely attributable to the Respondents. In addition
to the above delays, delayed issuance of AFC drawings of Super
Structures further delayed the planning and procurement works
for the Super Structure.
iii)In addition to the assortment of above delays, the details of cut-
outs for platform beams were issued to the Claimant on 26 th
October, 2010 i.e. only 2 days prior to casting of stage-1 of
platform beams and slab for Central Park station. On receipt of
cut-out details, the Claimant had to carry out various
modifications in the already fixed reinforcement rods and
shuttering at the cut-out locations to make provision for those
cut-outs and this delayed the casting of stage-1 of platform slab
by 2 days as it could be finally casted no sooner than 30 th
October, 2010. However, the AFC drawing for cut-out details were
finally issued to the Claimant on 19th November, 2010.
Furthermore, the details of embedded PVC conduit pipes, which
need to be provided for passage of electrical, lightings, ISMS
control and fire control wiring etc., were also issued to the
Claimant on 3rd October, 2010 and the same in turn had delayed
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casting of stage-1 of track slab for the Central Park station. Even
at this stage the Claimant was kept waiting for AFC drawing(s) for
details of embedded PVC conduit pipes.
iv)As already stated under Sl. No. D) hereinabove, due to shifting of
Grid-5 towards BNM playground, the cantilever portion of the
proposed Central Park station got intruded inside BNM
playground area and the same called for a fresh round of review
of designs and drawings. Consequently, the BNM authorities
were approached by the Respondent to sort out the issue.
However, due to the said reason too, superstructure work at the
said station location got delayed.
v) It is further submitted that the Claimant was issued an advance
drawing showing the beam details at track level slab from C to H
grid at Central Park station on 17 th August’2010. Since, the
project had already suffered substantial delays; the Claimant had
commenced arrangement for staging and shuttering to avoid
further delay and for the best interest of the project from Grid No.
H towards Grid No. G, based on such advance drawings.
However, as per the tender stage consideration, the Claimant had
envisaged commencement of superstructure work from either end

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of the proposed station location rather than from an intermediate
point of the station. The above change in sequence of work,
which was beyond the control of the Contractor, makes the
Contractor eligible to get extension of time as per Sub-clause No.
12.1, g of GCC of the contract agreement.
In this regard the Claimant refers to the following letters
wherefrom it will be palpably clear that there was a gross delay
on the part of the Respondent in handing over of AFC drawings
pertaining to superstructure components :-
d) Minutes of Meeting dated 19-04-2010.
of volume no II)
vi)Similarly, as per the baseline programme, issuance of AFC
drawings for superstructure works at Karunamoyee Station was
envisaged on 27th July 2009. However, the Contractor could
receive the first set of super structure drawing only on 9 th August
2010 after a sizeable delay of 360 days from the baseline
programme.
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vii) In this regard the Claimant refers to the following letters
c) Claimant’s letter dated 26.10.2010.
of volume no. II).
viii) As per the baseline programme, AFC drawings for
superstructure works pertaining to Sector V station was to be
handed over to the Claimant by 27-07-2009. However, the same
were issued on 03-09-2010 i.e. after a delay of 417 days.
ix)In this regard the Claimant refers to the following letters

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of volume no. II).
9 (I) Increase in scope of foundation works:-
i) As per Item No. B of Schedule A of Bill of Quantities (BOQ), scope
for piling works was stipulated as 10,500 RM. Ii shall appear
from Respondent’ s General Consultant (MYCEL) vide letter dated
09-07-2010 (Copy annexed and marked “C-15” at page no.
128 of volume no II) that the foundation works had increased to
19,750 RM. Hence the scope for piling works was increased by
88.09% from the original quantity in BOQ. This sizeable increase
in foundation works had an inevitable impact on the intermediate
milestone and final completion of the project as well.
ii) Total scope of pile foundation work as well as sub-structure and
superstructure works had been increased to a sizeable extent
with respect to tender stage considerations at the proposed
Sector-V station. As per the tender stage drawings, 18 to 24 nos
piles, 6 nos pile caps and 6 nos piers were supposed to be

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constructed inside the Eastern Drainage [ED] Canal. Whereas, as
per the received AFC drawings, 137 nos piles, 22 nos pile caps
and 31 nos piers were to be constructed inside the ED Canal.
Moreover, the length and width of the concourse area was also
increased and the same has resulted in substantial increase in
scope of superstructure works at the said station location.
iii) Increase in foundation works had a direct bearing on the
completion schedule for all the stations. Station-wise variation in
pile foundation work with respect to quantity stipulated in the
BOQ of the referred contract agreement is as tabulated below.
Quantity
Revised
Sl. Item Stipulated in
Station Quantity % Variation
No. Description the BoQ
(RM.)
(RM.)
1 Central Park Piling 3500.000 * 7089.90 (+)102.57
2 Karunamoyee Piling 3500.000 * 3028.40 (-)13.47
3 Sector-V Piling 3500.000 * 7835.47 (+)123.87
Provision for
further increase in
scope of work for
4 Piling 1795.38
construction of
entry structures at
various stations.
Total 10500.000 19749.15 (+)88.09
* Considering BoQ quantity for each Station = Total BoQ Quantity/3 = 10,500 RM./3 = 3500.000 RM.
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9 (J) Non-availability of permission to commence piling work on
Grid No - 1 & 2 (inside Sech Bhavan and Bikash Bhavan premises):-
i) That as per stipulation laid down in Clause 2.1 (General
Obligations of Employer) of GCC, the Respondent was to provide
the site and make payment to the Claimant in accordance with
the Contract. As per Clause 4.20 (Right of Way & facilities) of
GCC the Respondent was obliged to acquire and provide land for
permanent works and right of way. Clause 10.3.2 of GCC states
that the Employer shall give the Contractor, right to or right of
access to or possession of all or parts of site as the case may be
from time to time as stated in the contract and as confirming
with the requirement of the programme of the work.
ii) A such, it is palpably clear from the averments of the above
contract clauses that the Respondent was contractually or
otherwise obliged to give access and possession of site {working
fronts inside Sech Bhavan and Bikash Bhavan (for Grid No. 1 &
2) } to the Claimant.
iii) However, the Respondent had failed to fulfill the aforesaid
contract clauses within the prescribed time, leading to frequent

~ 30 ~
shifting, under utilization & idling of resources from one station
to another; resulting in severe delays and financial losses to the
Claimant.
iv) The Claimant had completed installation of all 129 nos. piles on
Grid Nos. 3, 4 & 5 on 06 th August, 2010. However, permission to
commence piling work inside the Sech Bhavan premises was
accorded only on 05th October, 2010.
i) Claimant’s electronic mail dated 30.07.2009;
ii) Claimant’s letter dated 06.08.2010.
volume no II).
9 (K) Delay due to non-availability of permission to commence
piling work on Grid No. 1 & 2 (inside the Bikash Bhavan premises):-
The Claimant had installed 20 nos. piles on Grid No. 1 & 2, which
were falling inside the Sech Bhavan premises by 05 th November,
2010. However, permission to commence piling work inside the
Bikash Bhavan premises to install balance 12 nos. piles was
granted on 12th November, 2010 i.e. on passage of 7 more days.

~ 31 ~
9 (L) Delay due to non-availability of permission to commence
piling work on Karunamoyee bus depot side (Grid No. 3):
The Claimant had completed the works pertaining to piling work on
central median portion and on Vidyut Bhavan side by 17 th August,
2010. However, due to non-availability of further working front on
Karunamoyee bus depot side, balance 22 nos. piles of Grid No. 3
couldn’t be taken up immediately. Piling work on Karunamoyee bus
depot side could be resumed only on 20th September, 2010 upon grant
of permission for the same by the Respondent. In this regard the
Claimant refers to its letter dated 18-08-2010 (copy annexed and
marked “C-17” at page no. 134 of volume no II).
9 (M) Delay due to Non availability of permission to commence
piling work on northern canal bank at the proposed Sector-V
station:
At the Sector-V station location, working front for installation of
piles on Grid No. 3 was made available to the Claimant only upon
diversion of 8 nos. 132 KVA WBSEDCL cables by the corresponding
authority from onwards 25th May, 2010. In this regard the Claimant
~ 32 ~
refers to the Minutes of Meeting dated 25-11-2009 (copy annexed
and marked “C-18” at page no. 135 of volume no II).
9 (N) Delay due to non-availability of working front for installation
of balance 11 nos. piles on Karunamoyee bus depot side (Grid No.
3) due to existence of shops infringing with piling works:
The Claimant could start piling work on Karunamoyee bus depot
side only on 20th September, 2010. However, out of 22 nos.
available piles the Claimant could install only 11 nos. piles owing to
presence of encroachments. Working front for installation of
balance 11 nos. piles on Karunamoyee bus depot side had not been
made available by the Respondent to the Claimant till 15-11-2010.
In this regard the Claimant refers to the following
correspondences:-
a) Minutes of Meeting dated 05-10-2010;
b) Respondent’s letter dated 13-11-2010.
of volume no II).
~ 33 ~
9 (O) Non-availability of permission to commence piling work on
Airport bound carriageway of Rajarhat Newtown Road for Grid No.
4:
i) That during the progress review meeting held on 26-08-2010, the
Claimant was instructed by the Respondent to deploy 2 nos.
piling rigs at the proposed Sector-V station location to complete
the piling work on Grid No. 4 expeditiously. Although, the pile
boring work on Grid No - 3 was completed by 28-08-2010, but
the Claimant was given permission to commence piling work on
Grid No-4 from onwards 04-09-2010 for 6 nos. piles out of total
39 nos. piles of Grid No 4. Since, the Claimant was only allowed
to do piling work for 6. nos working piles (1 pile group), only a
single piling rig could be engaged from onwards 04-09-2010 and
the 2nd piling rig was rendered idle at the said station location.
Consequent to the above, the Claimant was granted permission
to take up the balance piling work falling under Grid No 4 only on
10-09-2010 and then only the 2nd rotary piling rig for pile boring
work could be engaged, which had so far been idle at that
location..

~ 34 ~
c) Claimant’s letter dated 27.09.2010.
volume no II).
9 (P) Delay in commencement of pile cap construction work inside
E.D. Canal due to non-availability of permission to carry out canal
filling work before the monsoon of Year 2010: As per tender stage
considerations, only 6 nos. of pile caps were to be constructed inside
the E.D. canal and the Claimant had envisaged construction of those
pile caps adopting localized filling inside the canal. However, the
numbers of pile caps inside the canal were increased to 22 nos. i.e. by
3.67 times than the tender stage consideration. In addition to this, the
individual pile cap sizes also got increased with minimum number of
piles in any singular group being four and the largest group is having
as many as 20 piles as against 3 piles per group, indicated in the
tender stage drawing. The sizeable increase in numbers of piles, pile
caps and piers inside the E.D. Canal at the proposed Sector-V station
location called for filling of entire width of E.D canal for an approximate
length of 150 meters followed by laying of two rows of 1200 mm dia
NP3 pipes for the said length to maintain dry weather canal water flow.
~ 35 ~
Upon completion of entire piling works falling under Grid 1 & 2 inside
ED Canal on 04-07-2010, the Claimant could not commence the pile
cap construction inside ED canal, immediately. The Claimant was
instructed to postpone the commencement of construction of pile caps
inside the E.D. canal in view of the ensuing monsoon of Year 2010.
Accordingly, the Claimant had reinstated the canal before the onset of
monsoon. Nonetheless, to construct the pile caps and piers inside the
E.D. canal and to take up superstructure work, the Claimant had to
once again fill up the canal post monsoon to commence the sheet piling
work and also reinstate the canal once again upon completion of work.
In view of the above, repeated filling and excavation work inside the
canal due to sizeable variation from tender stage considerations during
execution phase at the said station location, delayed the work in its
entirety.
In this regard the Claimant refers to the following
correspondences:-
c) Minutes of CE, KMRCL's meeting held on 16.06.2010
d) Minutes of MD, KMRCL's Progress Review meeting held on
05.10.2010.
~ 36 ~
volume no II).
9 (Q) Delay due to non-availability of permission to commence
construction of pile caps on Airport bound carriageway of Rajarhat
Newtown Road for Grid No. - 4, before Durga Puja:
On completion of pile boring work on Grid No. 4, the Claimant had
to open the airport bound carriageway for traffic upon the
Respondent’s instruction on 27-09-2010, in consideration of the
festive season of the Year 2010. Subsequently, the road blockage
permission to commence construction of pile caps on Grid No. 4
was again granted on 03-11-2010 i.e. on passage of 37 days after
opening of road for traffic.
In this regard the Claimant refers to the following correspondences:-
a) Claimant’s letter dated 01.10.2010
b) Claimant’s letter dated 18.10.2010
c) Claimant’s letter dated 19.10.2010
d) KMDA Memo No. 314/KMDA/DGO/TT/S-1 dated 20.10.2010
e) Claimant’s letter dated 05.11.2010

~ 37 ~
volume no II).
9 (R) Extension of time due increase in length ad width of
concourse area:
There was an increase in the length and width of the concourse
area {i.e. from 2627 sq.m to 5845 sq.m(122%)} as per the AFC
drawings issued by the Respondent and the same was not
envisaged during the tendering stage leading to further delay in
execution of the work.
9 (S) Delay due to stoppage of work at night between 11 PM to 6
AM as per KMRCL’S instruction :-
As per the Respondent’s instruction the Claimant had to stop work at
night between 11Pm to 6 Am at Sector V station form 22-03-2010
resulting in under utilization of the Claimant’ 2 nos. of hydraulic piling
rig and allied machinery and man power deployed at such location.
Such embargo delayed the completion of the work in its entirety. In this
~ 38 ~
regard the Claimant refers to its letter dated 03-04-2010 (copy
annexed and marked “C-22” at page no. 230 of volume no II).
9 (T) Embargo from Bidhan Nagar Police Authority, in view of
Durga Puja (2009 and 2010):
i) That vide Memo No. 1099/(3) BDNZ/09 dated 22-09-2009 (copy
annexed and marked “C-23” at page no. 231 of volume no II)
issued by the Additional Superintendent of Police, Bidhannagar,
addressed to the Respondent with a copy marked to the
Claimant, request was made to inter alia to stop the work due to
the ensuing Durga Puja festival and as a result works were
completely suspended from 23-09-2009 to 30-09-2009.
ii) Similarly vide Memo No. /BDNZ/10 dated 05-10-2010
(copy annexed and marked “C-24” at page no. 232 of volume
no II) Additional Superintendent of Police, Bidhannagar inter alia
requested to stop the work due to the ensuing Durga Puja festival
and as a result works were completely suspended from 13-10-
2010 to 20-10-2010.
~ 39 ~
9 (U) Delay due to acute shortage in supply of aggregate at site: The
Claimant vide letter dated 18.05.10 (copy annexed and marked “C-
25” at page no. 234 of volume no III) had intimated the Respondent
that the work had come to a standstill since 14 th May 2010 due to
some unprecedented problem at quarries/ crusher plants leading to
acute shortage of 10mm & 20mm coarse aggregates. The problem
started 2-3 weeks ahead of Claimant’s letter dated 18-05-2010 (C-25).
The matter was also brought to the knowledge of MD, KMRCL during
meeting at HRBC Bhavan on 18 th May 2010. The situation was
completely unforeseeable by the Claimant resulting in stoppage of
works from 14th May 2010 to 05th June 2010. The Claimant once again
vide letter no. 012/KMRCEWS1&2/CL/MYCEL/001/VOL-4/0379
dated 05-06-2010 (copy annexed and marked “C-26” at page no.
235 of volume no III) had inter alia stated that due to non-handing
over of total area by the Respondent, it was not possible to stack
enough concreting materials so as to carry on unhindered execution of
work in such crisis period. Such letter was followed by Claimant’s letter
dated 14-06-2010 (copy annexed and marked “C-27” at page no.
237 of volume no III).

~ 40 ~
9 (V) Delay due to non-availability of designated dumping yard for
disposal of surplus non-serviceable materials and waste from site:
i) As per provision of the contract the Respondent was to provide
designated dumping yard for disposal of surplus and non-
serviceable materials like muck generated from boring of piles,
earth generated from excavation of pile caps, chipped off pile
heads, liquid waste etc. to the Claimant. Due to the failure on the
part of the Respondent to meet such contractual obligation, the
Claimant had to temporarily store the said non-serviceable
materials to some nearby places adjacent to the site. Thereafter,
the Claimant had to again hire some outside agencies under
duress to facilitate disposal of the above said materials at various
dumping grounds at a distance of around 30 km from site. The
said re-handling and disposal of non-serviceable and surplus
materials from site at a much longer distance entitled the
Claimant to extension of time as well as extra cost as the same
was not envisaged during the tendering stage.
ii) In this regard the Claimant refers to the following letters:-

~ 41 ~
d) Claimant’s letter dated 03.04.10;
e) Claimant’s letter dated 07.04.10.
(copies annexed and collectively marked “C-28” at page no. 239 of
volume no III)
iii) The Respondent’s General Consultants, MYCEL vide letter dated
26-04-2010 (copy annexed and marked “C-29” at page no.
258 of volume no III) had even acknowledged the failure on the
part of the Respondent to provide a designated dumping yard as
per provision of the contract and vide letter dated 30-07-2010
(copy annexed and marked “C-30” at page no. 259 of volume
no III) had arbitrarily ascertained Rs. 21,93,638/- as extra cost
incurred by the Claimant on account of disposal of earth muck
etc.
10. That owing to the delays and defaults on the part of the
Respondent as spelt out hereinbefore, the Claimant vide letter dated
26-11-2010 (Copy annexed and marked “C-31” at page no. 262 of
volume no III) had applied for extension of time in respect of each of
the stations considering the hindrances encountered upto15-11-
2010, as stated hereinbelow;

~ 42 ~
Elevated station Date of Delay in days Expected date of

including track
supporting viaduct completion as per completion
structure
base line
programme (C-7)
Central Park 08-02-2011 617 dys 17-10-2012
Station
Karunamoyee 08-02-2011 540 days 01-08-2012
station
Sector V station 22-01-2011 772 days 04-03-2013
The Respondent pursuant to such application for extension of time had
granted three nos. of interim extension of time in sequence, for the
periods of three months (upto22-04-2011), one month (i.e. upto 22-05-
2011) and upto 30-09-2011. Formal extension of time against first
formal prayer for extension was granted upto 31-12-2011.

~ 43 ~
11. The Claimant had applied for the second extension of time vide
Claimant’s letter dated 12-10-2011 (Copy annexed and marked “C-
31/1” at page no. 265 of volume no III), stationwise as follow:-
a) For Central Park station upto 31-03-2012;
b) For Karunamoyee station upto 30-04-2012;
c) For Sector V station upto 31-05-2012.
12. Extension of time was granted by the Respondent upto 30-04-
2012, pursuant to Claimant’s application dated 12-10-2011 (C-31/1)
as aforementioned and such application was made on the following
grounds:-
a) Non-availability of Final AFC drawing for entry/exit structures;
b) Non-availability of Final AFC drawing for ancillary structures;
c) Non-availability of encroachment / obstruction free working
front;
d) Non-release of payments;
e) Non-availability of approval for increase of contract value;
f) Miscellaneous stoppages.
~ 44 ~
13. The Claimant had applied for the third and final extension of
time vide Claimant’s letter dated 10-04-2012 (Copy annexed and
marked “C-31/2” at page no. 268 of volume no III) upto 31-05-2012
on the following grounds:-
a) Delayed instruction for additional works relating to construction
of ASS/TSS building at Central Park station after demobilization
of resources form site by the Claimant;
b) Delay in handing over of AFC drawings pertaining to ASS/TSS
building at Central Park station.
14. The Respondent vide letter dated 14-05-2012 (C-33 colly) had
granted extension of time upto 31-05-2012 as prayed by the Claimant
and the work was actually completed on 31-05-2012.
15. The Respondent from time to time vide letters mentioned
hereunder had extended time on ad interim basis subject to final
decision in the mater by the Board of Directors of the Respondent. It is
pertinent to note that the Respondent made no iota of dispute on the
grounds based on which the extensions of time were prayed for by the
~ 45 ~
Claimant and thereby acknowledged the various reasons for delays as
narrated in the aforesaid formal prayers for extension of time.
a) Respondent’s letter dated 27-01-2011, extending time for three
months without levy of L.D.
b) Respondent’s letter dated 19-04-2011, extending time for one
month without levy of L.D.
c) Respondent’s letter dated 18-07-2011, extending time upto 30-
09-2011 without levy of L.D.
(Copy annexed and collectively marked “C-32” at page no. 270 of
volume no III)
16. The Respondent further vide letters mentioned hereunder had
communicated grant of extension of time to the Claimant under the
provision of clause 10.7 of GCC:-
a) Respondent’s letter dated 11-08-2011, extending time upto 31-
12-2011 without levy of L.D., as approved by the Respondent’s
Board of Directors;
~ 46 ~
b) Respondent’s letter dated 16-12-2011, extending time upto 30-
Managing Director;
c) Respondent’s letter dated 14-05-2012, extending time upto 31-
Managing Director.
(Copy annexed and collectively marked “C-33” at page no. 273 of
volume no III)
It is pertinent to point out that work was admittedly completed on
31-05-2012.
17. That the perusal of Claimant’s prayer or extensions of time and
approval of the Respondent thereto should reveal that extensions of
time were necessitated for the delays and defaults on the part of the
Respondent and the aforesaid factual positions are narrated in a
compilation hereunder:-
~ 47 ~
EOT BRIEF REASONS FOR PERIOD OF PERIOD OF ENTITLEMENT TO

NO. WHICH EXTENSION EXTENSION EXTENSION EXTENSION UNDER THE
WAS PRAYED SOUGHT FOR GRANTED PROVISION OF
UPTO CONTRACT
01st 1. Delay in handing 1. Central Park 03 (three) months 1. Clause 2.6 of the Notice
interim over of area for station – 617 days. i.e. up to Inviting Tender, Part –I,
EOT Claimant’s Depot. 22.04.2011 Volume 1 of the Contract
2. Delay in handing Document, regarding
over of survey control 2. Karunamoyee (01st interim EOT) Construction Depot.
points. Station - 540 days. 2. Sl. No. 8 of Special
3. Delay in issuance conditions of Contract (SCC)
of AFC drawings for adding supplement to General
Test Pile (initial pile 3. Salt Lake Sector- Conditions of Contract (GCC)
load test). V Station - 772 sub clause 4.14 on setting out.
4. Delay in issuance days. 3. Sl. No. 2 of SCC
02nd of AFC drawing for 01 (one) month supplement to GCC sub Clause
interim working piles. i.e. up to no. 4.11 (specifications and
EOT 5. Increase in scope 22.05.2011 drawings).
of works. 4. Clause 10.7 of GCC.
6. Delay due to Non (02nd interim 5. Clause 2.1 (General
availability of working EOT) Obligations of Employer) of
front. GCC.
7. Delay due to non- 6. Clause 4.20 (Right of Way
availability of AFC & facilities) of GCC.
drawing for pile caps. 7. Clause 10.3.2 of GCC.
03rd Up to 30.09.2011
8. Delay due to non- 8. Clause 10.3.3 of General
interim availability of AFC Conditions of Contract
EOT drawing for piers. (03rd interim 9. Clause 2.2 of General
9. Delay due to non- EOT) Condition of Contract.
availability of AFC 10. Clause 4.19 of General
drawings for Pier Caps. Condition of Contract.
10. Delay in issuance 11. Clause 10.6 of General
of AFC Drawings for Conditions of Contract
Superstructure 12. Clause 12.1 of General
components. Conditions of Contract
11. Miscellaneous 13. Clause 12.2 of General
01st Up to 31.12.2011
stoppages. Conditions of Contract
formal
EOT (01st formal EOT)
02nd 1. Delay due to non- 1. Central Park Up to 30.04.2012 1. Clause 2.2 of General
formal availability of final station – Condition of Contract
EOT AFC drawing for entry/ 31.03.2012. 2. Clause 4.19 of General
exit structures. Condition of Contract
2. Delay due to non- 3. Clause 4.20 of General
availability of final 2. Karunamoyee Condition of Contract
AFC drawing for Station – 4. Clause 10.3.2 of General
ancillary structures. 30.04.2012. Condition of Contract
3. Delay due to Non 5. Clause 10.3.3 of General
availability of Conditions of Contract
encroachment/ 3. Salt Lake 6. Clause 10.6 of General
~ 48 ~
obstruction free Sector-V Conditions of Contract

working front. Station – 7. Clause 10.7 of General
4. Delay due to non- 31.05.2012. Conditions of Contract:
release of various long- Extension of Time for
overdue legitimate Completion not on Contractor’s
payments. fault
5. Delay due to non- 8. Clause 12.1 of General
availability of KMRCL Conditions of Contract:
approval for proposed Authority to order
enhancement in 9. Clause 12.2 of General
Contract value. Conditions of Contract
6. Miscellaneous 10. Clause 19 of General
stoppages Conditions of Contract: Force
Majeure.
Final 1. Delayed instruction for 31 days for the Up to 31.05.2012 1. Clause 10.6 of General
EOT construction of ASS/ entire work Conditions of Contract.
TSS building at Central 2. Clause 10.7 of General
Park station after Conditions of Contract:
demobilization of Extension of Time for
resources from site. Completion not on Contractor’s
2. Delay in handing over fault.
of AFC drawing for 3. Clause 12.1 of General
ASS/ TSS building at Conditions of Contract:
Central Park station. Authority to order.
4. Clause 12.2 of General
Conditions of Contract.
5. Clause 4.19 of General
Condition of Contract.
As a sequel to such extensions for reasons attributable to the
Respondent, the Claimant vide its letter dated 11-01-2013 (Copy
annexed and marked “C-34” at page no. 276 of volume no III)
had submitted the application containing details of various claims,
quantifications of such claims and the documents relied upon (302
pages) and called upon the Respondent for payment of the amounts
due to the Claimant.

~ 49 ~
18. The Respondent vide its letter dated 29-06-2013 (Copy annexed
and marked “C-35” at page no. 279 of volume no III) had disputed
the claims on some untenable grounds. The said letter was
categorically replied vide Claimant’s letter dated 08-07-2013 (Copy
annexed and marked “C-36” at page no. 282 of volume no III). The
Respondent thereafter had suggested for resolving the disputes by
conciliation.
19. That the Claimant vide letter dated 24-02-2014 (Copy annexed
and marked “C-37 ” at page no. 287 of volume no III) had submitted
the analysis break up for updated claims to the Conciliator. Finally, the
parties decided to dissolve the conciliation process and competent
authority of the Respondent vide letter 09-06-2015 (Copy annexed
and marked “C-38” at page no. 345 of volume no III) had confirmed
dissolving of conciliation process.
20. Disputes and differences had arisen between the parties in
respect of the following claims which are required to be adjudicated by
the Learned A.T.

~ 50 ~
Summary of applications
Sl. No. Description Claim amount Detailed
(Rs.) Calculation
1 Uncharted overhead cost on a/c of 77,848,210 Exhibit-I
over stay at site resulting due to (modified claim
reasons not attributable to the amt =
Contractor 2,68,65,417/-
2 Interest charges on delayed 31,776,172 Exhibit-II/1/R
payment against various withheld (modified claim
and outstanding amount as of 15th amt =
January'2014. 34,577,135)
3 Additional cost incurred, on a/c of 11,687,077 Exhibit-III
idling and/ or gross underutilization
of piling setup
4 Uncharted overhead cost incurred 2,187,899 Exhibit-IV
on a/c of frequent shifting of piling
setup due to reasons not
attributable to the Contractor
5 Additional mobilization of shuttering 9,533,654 Exhibit-V
and staging material due to change
in sequence of work
6 Extra cost incurred on account of 3,029,819 Exhibit-VI
maintenance & handling of
barricading boards beyond the
original completion period
7 Extra cost incurred towards 8,802,226 Exhibit-VII
fabrication, driving & retrieval of
additionally mobilized sheet pile
materials to facilitate construction of
pile caps inside the E.D. Canal at
Sector-V station
8 Extra cost incurred due to lesser 279,434 Exhibit-VIII
number of repetition of pier shutter
9 Reimbursement of extra cost on 1,785,116 Exhibit-IX

cement procurement due to
increase in railway freight
10 Extra cost incurred on account of 94,395 Exhibit-X
increase in Excise Duty
11 Extra cost incurred on account of 17,027 Exhibit-XI

introduction of entry tax w.e.f. 01st
Apr.’2012
12 Claim for reimbursement of extra 5,884,080 Exhibit-XII
cost incurred on procurement of
aggregate during extended stay
~ 51 ~
13 Claim for reimbursement of extra 1,972,748 Exhibit-XIII

cost incurred on procurement of
aggregate during original completion
period
14 Loss of profit and unrecovered 23,234,679 Exhibit-XIV
corporate overhead on a/c of loss of (modified claim
opportunity during extended stay at amount
site 4,24,73,904.00
15 Grand Total 178,132,536
(modified claim
amt = Rs.
14,91,89,931/-
)
21.1 Claim No. 1 - Uncharted overhead cost on a/c of over stay at
site resulting due to reasons not attributable to the Claimant = Rs.
7,78,48,210.00
21.1.1 The Claimant is entitled to and claims a sum of Rs.
2,68,65,417.00 (Rupees to crores sixty eight lac sixty five thousand
four hundred and seventeen only) being the expenses incurred on
unchartered overhead cost owing to over stay at site for reasons
attributable to the Respondent.
21.1.2 The Claimant had submitted the details of its claim in a
compilation marked Exhibit – I enclosed to Claimant’s letter dated 24-
02-2014 (C-37) before the Conciliator. It shall appear from page 295 of
volume III that the computation has been made for both the packages
i.e. EWS – 1 (R) and EWS – 2 (R) and the Claimant had claimed for this
~ 52 ~
package i.e. EWS – 1 (R) proportionate overhead cost based on the
value of work done under the package with respect to total value of
work done for both the packages during the extended stay. The
Claimant craves to explain vividly the said computations during the
course of arbitration sittings to follow. During review of the
computation, the Claimant observed that during the extended period
the Claimant had executed extra quantum of works valuing Rs.
(76,16,24,737 minus 53,09,23,842) i.e. Rs. 23,07,00,895.00. The value
of work done in the extended period including value of additional
quantum of work (Rs. 23,07,00,895.00), was for Rs.
35,22,45,769/-. Therefore, the value of extra work is 65.49% of the
value of work done in the extended period. The Claimant could realize
the cost of overhead which is inbuilt in the said cost of Rs.
23,07,00,895.00 to the tune of 65.49% of the value of actual overhead
cost incurred in the extended period i.e. Rs. (65.49% of 7,78,48,210) =
Rs. 5,09,82,793.00. The said amount of Rs. 5,09,82.793.00 should be
set off from the amount claimed earlier and the modified / reduced
amount of claim stands at Rs. (7,78,48,210 minus 5,09,82,793) i.e. Rs,
2,68,65,417/-.
~ 53 ~
21.1.3 In accordance with the provisions of Contract, the
Claimant was required to prepare a detailed programme of work so as
to achieve the target dates of various activities and submit to the
Respondent’s Engineer within 28 days of receipt of Letter of Acceptance
(in short ‘LOA’) dated 23-05-2009 (C-4). Accordingly, the Claimant had
submitted the Work Program having profound regards to the agreed
fact situation at the material time of entering into the contract,
envisaging achievement of project completion by 20 months reckoned
from the date of issuance of the LOA. The Claimant had specifically
construed that in order to enable the Claimant to complete the works
within the stipulated period of 20 months, reciprocal promises such as
timely handing over of the possession of obstruction free site, timely
issuance of AFC drawings, timely release of payment against various
certified invoices, providing area for Contractor’s Depot, etc, should be
arduously observed by the Respondent.
21.1.4 The Claimant dismally observed after commencement of
the works, that the said baseline program was adversely affected and
utterly frustrated by many a hindrance and impediments beyond all the
effective control of the Claimant and extension of time for completion
was necessitated for reasons attributable to the Respondent. As an

~ 54 ~
impact of the change in the agreed fact situation for turn of events
during the execution of work, the Claimant was exposed to serious
losses and injuries on divers accounts. The effects of these
impediment/hindrances were brought to the notice of the Respondent
from time to time. Many of these delay events & circumstances were
continuing in nature, thereby making further reduction in the
anticipated progress of works, loss in productivity. This necessitated
revisions of completion schedules time and again at the peril of the
Claimant, factual matrix whereof is set out in a compilation spelt out in
paragraph no. 17 hereinabove.
21.1.5 The Claimant craves to rely inter alia on the following
documents
a) Claimant’s letter dated 24-02-2014 (C-37);
b) Exhibit –I (details of plant and machinery cost at page no.
291 of volume III of C-37);
21.1.6 The Claimant respectfully prays that the Learned A.T. may
be pleased to award a sum of Rs. 2,68,65,417.00 ((Rupees two crore

~ 55 ~
sixty eight lac sixty five thousand four hundred and seventeen only) as
per Claim No. 1.
21.2 Claim No. 2 - Interest charges on delayed payment against
various withheld and outstanding amount as of 15th January'2014
= Rs. 3,43,09,552.00 (Claim amount updated up to 10-12-2015)
21.2.1 The Claimant is entitled to and claims interest on
withheld / outstanding payments due to the Claimant as S.B.I.
Benchmark prime lending rate of interest amounting to Rs.
3,43,09,552.00. The amount claimed earlier was evaluated up to 15 th
January, 2014 and the said calculation is updated for claiming interest
till 10th December, 2015 and the updated claim amount is Rs.
3,43,09,552.00. The details of the original claim are set out in a
compilation marked as Exhibit – II at page 297 of volume III),
enclosed to Claimant’s letter dated 24-02-2014 (C-37). Details of
updated claim is set out in a compilation annexed herewith and
marked as Exhibit II/1/R (Page 90 of Volume I). The S.B.I.
Benchmark prime lending rate of interest, as downloaded from S.B.I.
corporate web site is annexed hereto and marked as Exhibit – II/1.
The Claimant updated Exhibit – II by deleting the interest amount due
for reimbursement of W.B. VAT amount and interest calculated on

~ 56 ~
outstanding amount against W. B. VAT separately and submitted to the
Respondent vide Claimant’s letter dated 10-12-2015 (copy annexed
and marked C-39 at page no. 346 of volume III). The Claimant
craves to elaborate the said computations during the course of
arbitration sittings to follow.
21.2.2 Sub-clause 15.4.1 (b) & (c) of the agreement, categorically
stipulates that after preliminary scrutiny and certification by the
Respondent’s Engineer, payment of 80% of the certified amount shall
be made by the Respondent within 7 days and the balance 20% of the
certified value of work done shall be paid within 28 days from the date
of preliminary certification of bill by the Respondent’s Engineer.
21.2.3 Clause 22.1.2 of SCC stipulates that the payments against
escalation bills shall also be made within 28 days from the date of
preliminary certification by the Engineer, as far as possible.
21.2.4 Time and again the Claimant had put the Respondent on
notice for claiming interest on delayed release of outstanding /withheld
amounts, as per the details of such notices spelt out hereunder:-

~ 57 ~
a) Claimant’s letter dated 29-11-2010;
b) Claimant’s letter dated 05-01-2011;
c) Claimant’s letter dated 13-01-2011;
d) Claimant’s letter dated 22-02-2011;
e) Claimant’s letter dated 12-04-2011;
f) Claimant’s letter dated 18-05-2011;
g) Claimant’s letter dated 03-06-2011;
h) Claimant’s letter dated 04-06-2011;
i) Claimant’s letter dated 09-06-2011;
j) Claimant’s letter dated 07-07-2011;
k) Claimant’s letter dated 03-08-2011;
l) Claimant’s letter dated 15-10-2011;
m) Claimant’s letter dated 14-11-2011;
n) Claimant’s letter dated 10-02-2012;
o) Claimant’s letter dated 15-03-2012;

~ 58 ~
p) Claimant’s letter dated 06-08-2012;
(copies annexed and collectively markd as C-40 at page no. 351 of
volume III)
21.2.5 The Claimant had emphasized that without timely and regular
payments, the planned progress of work should suffer adversely since
the Claimant should not be able to plough back its working capital for
expediting further mobilization of resources. More so, for blockage of
working capital, the Claimant should not be in a position to keep its
financial commitments to its suppliers and creditors and thereby the
Claimant should lose its creditability in the borrowing market and the
same shall in turn throttle the progress of work by retarding the
mobilization of materials for the work.
21.2.6 The delay in releasing the payment was primarily due to the long
stretched system of bill checking, processing and release of payment
adopted by the Respondent. Besides, Respondent’s accounts
department used to put forth several observations and/or comments
against various technical issues, which were beyond the ambit of the
contract and the said observations and/or comments, would have

~ 59 ~
invariably been raised just 1-2 days prior to the stipulated date of
release of 20% payment by KMRCL.
21.2.7 In view of factual positions and the contractual provisions
narrated hereinbefore, it is needless to mention that the Respondent
had made itself liable to pay interest to the Claimant and the Claimant
respectfully prays the learned AT may be pleased to award the said
sum of Rs. 3,43,09,552.00.
21.3 Claim No. 3 - Additional cost incurred, on account of idling
and/ or gross underutilization of piling setup = Rs. 1.16,87,077.00
1,16,87,077.00 (Rupees one crore sixteen lac eighty seven thousand
and seventy seven only) being the expenses incurred on unchartered
overhead cost owing to over stay at site for idle and underutilized
piling setup mobilized for the work consequent upon the delays and
defaults on the part of the Respondent.
21.3.2 The details of this claim are set out in a compilation
marked as Exhibit – III, enclosed to Claimant’s letter dated 24-02-

~ 60 ~
2014 (C-37). Graphical representation of the available working days,
delay days and movement of hydraulic piling rig is made for better
appreciation of this claim, which is marked as Exhibit-IIIA, enclosed to
Claimant’s letter dated 24-02-2014 (C-37). It shall be evident from the
said graphical representation that the Claimant earnestly endeavoured
to mitigate its losses and injuries by repositioning the piling rig on
repeated occasions.
21.3.3 The Claimant craves to rely inter alia on the following
contemporaneous correspondence:-
f) Claimant’s letter dated 18-10-2010;
g) Claimant’s letter dated 01-12-2010;
h) Claimant’s letter dated 15-12-2010;

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i) Claimant’s letter dated 19-08-2011;
j) Claimant’s letter dated 10-09-2011;
k) Claimant’s letter dated 07-11-2011;
(copies annexed and collectively marked as C-41 at page no. 435 of
volume III)
21.3.4 As submitted in paragraphs 9 (C), 9 (D) and 21.1,
hereinbefore, the Claimant had envisaged receipt of the AFC drawings
for pile(s) by 10th June, 2009 complying with the baseline programme.
However, AFC drawing for first initial load test pile was issued by the
Respondent as late as on 14th September, 2009 followed by issuance of
first set of AFC drawing for working piles for Central Park on 31st
December, 2009. In this connection, the Claimant craves to invite
attention of the Learned A.T. to its letters dated 13-10-2009 (C-13
colly) and 29-10-2009 (C-14 colly), through which the Claimant had
recorded the initial duration of idling of piling set up for the non-
availability of AFC drawing for working piles. The initial delay in
issuance of AFC drawings for working piles were followed by further
delay in issuance of AFC drawings for all the station locations and the
said AFC drawings were also issued to the Claimant in piece-meal basis
~ 62 ~
leading to idling and/or underutilization of costly piling set up
mobilized at site. For the non-availability of encroachment and/or
obstruction free piling front at various station locations, the piling set
up of the Claimant had remained idle at site for prolonged period and
the same was notified to the Respondent and its General Consultant
from time to time through a plethora of contemporaneous as already
referred to hereinbefore. Nonetheless, to mitigate losses and injuries
for idling of piling set up the Claimant had to resort to frequent shifting
of its piling set up from one station location to another.
21.3.5 It is abundantly clear that the Claimant’s piling set up was
idle for 172 available rig-days i.e. 5.73 available rig-months owing to
the reasons attributable to the Respondent.
be pleased to award the said sum of Rs. Rs. 1,16,87,077.00 (Rupees
one crore sixteen lac eighty seven thousand and seventy seven only).
~ 63 ~
21.4 Claim No. 4 - Uncharted overhead cost incurred on account
of frequent shifting of piling setup owing to reasons attributable to
the Respondent = Rs. 21,87.899.00
21,87,899.00 (Rupees twenty one lac eighty seven thousand eight
hundred and ninety nine only) towards uncharted overhead cost
incurred on account of frequent shifting of piling setup owing to
reasons attributable to the Respondent.
21.1.5 While preparing the said baseline work programme, the
Claimant had envisaged mobilization of 2 nos. hydraulic rotary piling
rigs one each at any of the two station locations and such rigs shall
start installation of working piles for two locations with effect from 09-
09-2009 initially, followed by deployment of one more rig in the third
station location for commencement of installation of working piles on
11-12-2009. It shall appear from Exhibit IV annexed to the letter dated
24-02-2014 (C-37) that there were as many as eight nos. of
infructuous shifting of piling rigs from different locations, owing to non-
availability of piling work front. In this regard the Claimant craves to
elaborate further relying on the said Exhibit IV and Exhibit IV A
(being a line diagram depicting available working days, delay days and
~ 64 ~
movement of piling rig.) annexed to the letter dated 24-02-2014 (C-37).
The Claimant further submits a compilation (annexed and marked
Exhibit – IV B at page no. 95 of volume I), demonstrating the
justification of such additional movement of piling rigs.
21.1.6 To avoid prolixity and to make submissions brief, the
Claimant craves to repeat and reiterate the irrefutable factual positions
submitted in the foregoing paragraphs dealing with claim no. 3.
be pleased to award the said sum of Rs. 21,87,899.00 (Rupees twenty
one lac eighty seven thousand eight hundred and ninety nine only).
21.5 Claim No. 5 - Additional mobilization of shuttering and
staging material owing to change in sequence of work =
Rs.95,33,654.
95,33,654 (ninety five lac thirty three thousand six hundred and
fifty four only) towards additional mobilization of shuttering and

~ 65 ~
staging material owing to change in sequence of work. The Claimant
craves to rely on the compilation marked as Exhibit V annexed to the
letter dated 24-02-2014 (C-37). The Claimant craves to explain vividly
the aid Exhibit V during the course of arbitration sittings to follow.
21.5.2 The Claimant relies on the baseline work programme
wherefrom, it appears that superstructure works was programmed to
be commenced from 05-12-2009 for Station-1 & 2 with targeted
completion on 02-10-2010. Superstructure works for station no. 3
under this contract was planned to be commenced from 09-03-2010. It
is needless to submit that this programme was drawn to suit the
agreed fact situation and in particular stipulated period of 20 months.
It is irrefutable that the Respondent couldn’t issue the drawings in a
logical sequence commensurate the baseline programme. Further, the
encroachment free working areas had not been handed over as per the
requirement of the baseline programme. The said baseline programme
was virtually frustrated for a number of hindrances which were
communicated to the Respondent from time to time. The Claimant was
constrained to wait aimlessly for the availability of drawings and
encroachment/ obstruction free work site and to mitigate further loss
of time, the Claimant had to mobilize additional sets of staging and

~ 66 ~
shuttering materials to carry out the works at different station
locations. It is needless to mention that the use of staging and
shuttering materials couldn’t be optimized. By no stretch of
imagination, the Claimant could contemplate such an unassailable
situation arising out of the delays and defaults of the Respondent and
the Respondent thereby had made itself liable to compensate the
Claimant for all its losses and injuries. It is irrefutable that the
Claimant could commence the superstructure work at Central Park
Station in the month of August, 2010 and completed in the month of
July, 2011. Accordingly, the commencement and completion months of
concreting for superstructures (from concourse level to platform level)
at Sector-V and Karunamoyee Stations were delayed till January, 2011
& April, 2012 and October, 2010 & August, 2011 respectively. From
this, it is evident that, the work for superstructures at all the
three stations went on simultaneously entailing mobilization of
additional shuttering and staging materials. The commencement of
superstructure work, in the form of concourse level slabs and beams
got delayed inordinately, owing to delayed receipt of
encroachment/obstruction free site for piles on either side of the
central median at each of the station locations. For such additional
mobilization of shuttering and staging materials, the Claimant had

~ 67 ~
perforce to incur additional cost which was not envisaged during tender
stage.
be pleased to award the said sum of Rs. 95,33,654 (ninety five lac thirty
three thousand six hundred and fifty four only).
21.6 Claim No. 6 - Extra cost incurred on account of maintenance
& handling of barricading boards beyond the stipulated completion
period = Rs.30,29,819.
30,29,819.00 (Rupees thirty lac twenty none thousand eight hundred
and nineteen only) being the extra cost incurred on account of
maintenance & handling of barricading boards beyond the stipulated
completion period. The Claimant craves to rely on the compilation
marked as Exhibit VI annexed to the letter dated 24-02-2014 (C-37).
The Claimant craves to elaborate the said Exhibit VI during the course
of arbitration sittings to follow for better appreciation for this claim.

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21.6.2 Clause 1.6 of S.01 of Structural Specifications, Vol-2 of the
contract mandates the Claimant to provide and maintain the
barricading boards during the execution of the works. The project
completion period was extended for 16 months beyond the original
completion period. During this extended period of completion, the
Claimant had to maintain the barricading boards. Pursuant to BOQ
item no. G) Miscellaneous Items 6 of Schedule-A, the Claimant had
envisaged the maintenance of barricading boards only during the
stipulated completion period i.e. 20 months. Accordingly the bid was
priced at the time of submission of tender. The Claimant had to incur
additional cost for maintenance and several handling of the said
barricading boards during the extended period. The Claimant was
required to transport the barricading boards at different locations on
repeated occasions. In this respect the Claimant relies on its letter
dated 31-08-2012 (copy annexed and marked C-42 at page no 453
of volume III). The Respondent did not dispute the factual positions
recorded in the said letter dated 31-08-2012 (C - 42)

~ 69 ~
be pleased to award the said sum of Rs. 30,29,819.00 (Rupees thirty
lac twenty none thousand eight hundred and nineteen only).
22.7 Claim No. 7 - Extra cost incurred towards fabrication, driving
& retrieval of additionally mobilized sheet pile materials to
facilitate construction of pile caps inside the Eastern Drainage (in
short ‘E.D.’) Canal at Sector-V station = Rs.88.02,226.
22.7.1 The Claimant is entitled to and claims a sum of
Rs.88,02,226 (Rupees eighty eight lac two thousand to hundred and
twenty six only) being the extra cost incurred towards fabrication,
driving & retrieval of additionally mobilized sheet pile materials to
facilitate construction of pile caps inside the E.D. Canal at Sector-V
station. The Claimant craves to rely on the compilation marked as
Exhibit VII annexed to the letter dated 24-02-2014 (C-37). The
Claimant craves to vividly explain the said Exhibit VII during the
course of arbitration sittings to follow.

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22.7.2 As ascertained from the provisions of tender documents,
procurement of only 24 RM of sheet piles were required to facilitate
construction of 6 nos. smaller sized pile caps over 6 Nos. Pile groups
with each of the groups comprising of 3-4 Nos. of piles, inside E.D.
Canal at the proposed Sector-V station.
22.7.3 The Claimant had to construct 22 Nos. gigantic pile caps,
as per AFC drawings issued by the Respondent, over a total number of
131 piles with the largest group consisting of as many as 20 Nos. piles
inside E.D. canal area. This involved the works viz. casting, de-
shuttering and de-staging of entire concourse slab prior to the onset of
monsoon. Consequently, the Claimant had to procure a total quantum
equivalent to 244 RM of sheet piling materials instead of 122 RM as
ascertained from the tender document.
22.7.4 Subsequent to financial approval of additional cost towards
mobilization of additional sheet pile materials by the Respondent, the
Claimant had mobilized the said quantum of sheet pile materials with a
view to completing the construction up to concourse slab over E.D.
Canal prior to onset of the monsoon of 2011.

~ 71 ~
22.7.5 In order to put those additional sheet pile materials in use
and make fit for requirement, the Claimant had to fabricate and drive
the sheet piles to facilitate construction of pile caps below canal bed
level and subsequently, the Claimant had to retrieve those additionally
mobilized sheet pile materials upon completion of sub-structure work
and these sub-activities had involved further additional cost.
22.7.6 In this regard the Claimant craves to rely on its following
letters:-
a) dated 28-04-2011;
b) dated 03-05-2011;
c) dated 10-05-2011.
(copies annexed and collectively marked C-43 at page no. 454 of
volume III)
be pleased to award the said sum of Rs.88,02,226 (Rupees eighty eight
lac two thousand to hundred and twenty six only).

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22.8 Claim No. 8 - Extra cost incurred owing to lesser number of
repetition of pier shutter = Rs. 2,79,434
2,79,434/- (Rupees two lac seventy nine thousand four hundred and
thirty four only) being the extra cost incurred owing to lesser number of
repetition of pier shutter. The Claimant craves to rely on the
compilation marked as Exhibit VIII annexed to the letter dated 24-02-
2014 (C-37). The Claimant craves to vividly explain the said Exhibit
VIII during the course of arbitration sittings to follow.
22.8.2 The tender drawings stipulated that there would be
maximum two types of circular piers for the subject work i.e. one type
for piers on central median and another type for piers on either side of
the station building. However, during execution, the AFC drawings
supplied by the Respondent provided circular and D-shaped expansion
joint piers of diameters 1800 mm, 1600 mm, 1400 mm and 1000 mm.
It is needless to mention that such subsequent change in shape of pier
resulted in significant reduction of repetitions in pier shutter from 40

~ 73 ~
nos. of uses prescribed as per Sl. No. 9.4 of preface of DSR, 2007
(copy annexed and marked C- 44 at page no. 479 of volume III).
be pleased to award the said sum of Rs. 2,79,434/- (Rupees two lac
seventy nine thousand four hundred and thirty four only).
22.9 Claim No. 9 - Reimbursement of extra cost on cement
procurement due to increase in railway freight = Rs. 17,85,116
17,85,116.00 (Rupees seventeen lac eighty five thousand one hundred
and sixteen only). The Claimant craves to rely on the compilation
marked as Exhibit IX annexed to the letter dated 24-02-2014 (C-37).
The Claimant craves to vividly explain the said Exhibit IX during the
course of arbitration sittings to follow.
22.9.2 The Claimant used to procure cement from Cossipore stock
yard for the work. It is submitted that cement was transported from
Raipur plant to Cossipore stock yard in railway wagon and the
corresponding rail distance between these two points stands at 858.43

~ 74 ~
Km. Indian Railways had increased the railway freight w.e.f. 27th
December, 2010 and the rate was increased from Rs.783.00/MT to
Rs.814.40/Mt for the above rail distance. This rate was once again
hiked w.e.f. 06th March, 2012 and it was increased to Rs.1003.40/MT
from Rs.814.40/MT. the Claimant craves to rely on “I.R.C.A., Goods
Tariff No. 46 Pt. I (volume II)” (copy annexed and marked C - 45 at
page no. 481 of volume III) It may be appreciated that this increase
in railway freight got added to the cost of cement procurement thereby
imposing additional financial burden on the Claimant.
be pleased to award the said sum of Rs. 17,85,116.00 (Rupees
seventeen lac eighty five thousand one hundred and sixteen only).
22.10 Claim No. 10 - Extra cost incurred on account of increase in
Excise Duty = Rs. 94,395.
94,395/- (Rupees ninety four thousand three hundred and ninety five
only) towards extra cost incurred on account of increase in Excise

~ 75 ~
Duty. The Claimant craves to rely on the compilation marked as
Exhibit X annexed to the letter dated 24-02-2014 (C-37).
22.10.2 There had been a number of amendments in various
existing taxes and duties by the Government of India during the course
of execution of the work. Excise duty on ready mix concrete (RMC) was
nil up to February‘2011. From 01-03-2011, Excise duty (including
Education Cess) of 1.03 % on ready mix concrete was introduced by the
Government of India vide Notification no. 1/2011-Central Excise dated
01-03-2011.
22.10.3 Subsequently, vide notification no. 16/2012-Central
Excise, with effect from 17-03-2012, Excise duty on RMC was
increased to 2.06% (including Education Cess).
22.10.4 Excise duty on all types of construction materials was
increased from 10.3% (including Education Cess) to 12.36% (including
Education Cess) vide notification no. 18/2012-Central Excise with
effect from 17-03-2012.

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Copies of the notifications dated 01-03-2011 and 17-03-2012 are
annexed hereto and collectively marked as C- 46 at page no. 495 of
volume III).
be pleased to award the said sum of Rs. 94,395/- (Rupees ninety four
thousand three hundred and ninety five only).
22.11Claim No. 11 - Extra cost incurred on account of
introduction of entry tax w.e.f. 01st Apr.’2012 = Rs. 17,027.00
17,027.00 (Rupees seventeen thousand and twenty seven only). The
Claimant craves to rely on the compilation marked as Exhibit XI
annexed to the letter dated 24-02-2014 (C-37).
22.11.2 The stipulated date of completion of the work was 22-01-
2011. That notwithstanding the position that the Claimant was
otherwise ready, willing, agreeable and competent to complete the

~ 77 ~
work, in its entirety, within the stipulated period of completion, the
execution of work had continued inordinately beyond the stipulated
date of completion, grossly on account of delays and defaults on the
part of the Respondent and the work was completed in all respects by
31-05-2012. Vide Gazette Notification dated 31-03-2012 (copy
annexed and marked C - 47 at page no. 509 of volume III), the
Government of West Bengal had introduced Entry Tax. Such tax was
applicable for almost all the construction materials at the relevant time.
The introduction of this new tax was an additional financial burden on
the Claimant.
22.11.3 In this regard the Claimant relies on Clause 13 of Special
Conditions of Contract and the relevant provision of contract is quoted
hereunder:-
“1. any new tax which is imposed after the due date of submission of
tender and which impacts the performance of the Contractor with
increased cost or which results in extra financial gains to the Contractor
due to decreased cost in execution of Works
2. Change in any law pertaining to work having the above said impact”
~ 78 ~
Then such additional or reduced cost shall be certified by the Engineer

after examining records provided by the Contractor and shall be paid by
or credited to the Employer”
be pleased to award the said sum of Rs. 17,027.00 (Rupees seventeen
thousand and twenty seven only).
22.12Claim No. 12 - Claim for reimbursement of extra cost
incurred on procurement of aggregate during extended stay = Rs.
58,84,080.00
58,84,080.00 (Rupees fifty eight lac eighty four thousand and eighty
only). for reimbursement of extra cost incurred on procurement of
aggregate during extended period of completion. The Claimant craves to
rely on the compilation marked as Exhibit XII annexed to the letter
dated 24-02-2014 (C-37).
22.12.2 Clause 13.2 of GCC of the contract agreement, stipulates
that “To the extent that full compensation for any rise or fall in costs to
~ 79 ~
the Contractor is not covered by the price variation formula, the rates in
the accepted Bill of Quantities shall be deemed to include amounts to
cover the contingency of such rise of costs.”
22.12.3 It is well settled that ordinarily the parties would be bound
by the terms of the contract, but in the event one of the parties to the
contract is unable to fulfill its obligations under the contract, which
has a direct bearing on the work to be executed by the other party, the
Learned A.T. is vested with the authority to compensate the second
party for the extra costs incurred by him as a result of failure of the
first party to live up to its obligations. It is needless to mention that the
Claimant had never agreed to bound itself in a fundamentally different
situation which unexpectedly arouse by the turn of events consequent
upon the delays and defaults on the part of the Respondent. The
learned A.T. may kindly appreciate that the instant contract had
suffered an inordinate delay for a period of more than 16 months owing
to various reasons not attributable to the Claimant. Hike in unit cost of
any major input concrete material, which couldn’t be contemplated by
the Claimant while structuring the rates for submission of tender,
should be compensated.
~ 80 ~
22.12.4 In this connection, the Claimant craves to draw the kind
attention of the Learned A.T. to its letter dated 21-10-2010, wherein
the Claimant had put the Respondent on notice that supply of coarse
aggregate at site continued to be a perpetual problem for execution of
the work. As such, the Claimant was compelled to procure aggregates
from local suppliers at fancy price. While finalizing the price of the
tender for the said contract during the month of Mar-Apr.’2009, the
Claimant had considered the unit rates of Rs.1350.00 & Rs.1200.00
per cum against 20mm and 10mm down coarse aggregates
respectively. However, from the actual cost of procurement of 20 mm
and 10 mm down coarse aggregates, during the extended period of the
contract the Claimant had to purchase the said aggregates at average
price of Rs.1827.55 & Rs.1492.06 per cum respectively as per the
delays submitted hereunder:-
Type of Quantity (cum) Cost of purchase Average rate

aggregate
(Rs.)
10mm 15410.253 2,29,93,076.76 1827.55
20 mm 16062.399 2,93,54,841.77 1492.06

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The foresaid figures have been extracted from Claimant’s accounts
(ERP), maintained in the usual course of business and a copy of the
relevant portion of ERP is annexed hereto.
22.12.5 In this regard the Claimant refers to the following letters:-
f) Extract from ERP.
(copies annexed and collectively marked C - 48 at page no. 521 of
volume III)
be pleased to award the said sum of Rs. 58,84,080.00 (Rupees fifty
eight lac eighty four thousand and eighty only).

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22.13 Claim No. 13 - Claim for reimbursement of extra cost
incurred on procurement of aggregate during original completion
period = Rs. 19,72,748.
19,72,748 (Rupees nineteen lac seventy two thousand seven hundred
and forty eight only) for reimbursement of extra cost incurred on
procurement of aggregate during original completion period. The
Claimant craves to rely on the compilation marked as Exhibit XIII
annexed to the letter dated 24-02-2014 (C-37).
22.13.2 To avoid prolixity and to make submissions brief, the
Claimant begs to repeat and reiterate the submissions made while
dealing with Claim No. 12 hereinbefore. Vide letter dated 21-10-2010
(C-37 colly), the Claimant inter alia had brought to the notice of the
Respondent the unprecedented crisis of availability of aggregates which
resulted in stoppage of production of aggregates in the prominent
quarries/crusher plants in and around West Bengal in the month of
April-May’2010. These unforeseen circumstances prompted the local
suppliers to take advantage of the situation by stopping the supply of
aggregates at site with an attempt to hike the prices of aggregates and
this has been a thoroughly unforeseen event.

~ 83 ~
be pleased to award the said sum of 19,72,748 (Rupees nineteen lac
seventy two thousand seven hundred and forty eight only).
22.14 Claim No. 14 - Loss of profit and unrecovered corporate
overhead on a/c of loss of opportunity during extended stay at site =
Rs. 4,24,73,904.00
4,24,73,904.00 (Rupees four crore twenty four lac seventy four
thousand nine hundred and four only) for Loss of profit and unrecovered
corporate overhead on a/c of loss of opportunity during extended stay at site.
The details for arriving at the claim amount are spelt out hereunder:-
Description Value (Rs.)
Contractual value of work----(A) 53,09,23,842.00
Stipulated period of completion—(B) 20 months
Average turnover per month on no hindrance 2,65,46,192.00

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basis----------(C=A/B)
Average profit which could have been earned 26,54,619.00
on no hindrance basis per month @ 10% on
turn over------(D=10% of C)
Extended period------------------E 16 months
Loss of profit earning capacity--------(F=D X E) 4,24,73,904.00
22.14.2 As per Contract, the Claimant had contemplated to
complete the work within the stipulated time frame of 20 months on no
hindrance basis and accordingly had planned and mobilized all the
requisite resources at site. Notwithstanding the position that the
Claimant was otherwise ready, willing, agreeable and competent to
complete the work, in its entirety, within the stipulated period of
completion, the execution of work had continued inordinately beyond
the stipulated date of completion, grossly on account of delays and
defaults on the part of the Respondent and the work was completed in
all respects by 31-05-2012 i.e. with a delay of 16 months beyond the
stipulated period of completion. Owing to inordinate overstay at site,

~ 85 ~
attributable to the Respondent, as have been deliberated in other
applications, the Claimant had lost the opportunity to deploy its
resources retained for this project in the extended period, to other
projects and/or to fulfill other commitments thereby losing the
opportunity to work somewhere else which would have earned
reasonable profit
22.14.3 The Claimant respectfully submits that inasmuch as
Claimant’s resources were retained for an additional period of 16
months, beyond the stipulated date of completion, the Claimant could
not offer competitive price, since the Claimant structured its bid relying
on hired resources. For instance, the Claimant participated in the
tenders which were invited by RVNL vide notice dated 27-06-2011 for
execution of work packages ANV1, ANV2, ANV3 and ANV4 relating to
construction of viaduct works for New Garia – Airport corridor of
Kolkata Metro Railway Line. Tenders were submitted by the Claimant
on 17-08-2011 based on hired resources and the Claimant was
unsuccessful. It can be recalled that the date stipulated for completion
was 22-01-2011. The Claimant craves to disclose herewith the copy of
tender notice issued on 27-06-2011 relating to the above referred
works and copy of forwarding letter dated 17-08-2011 with which the
~ 86 ~
Claimant had submitted its tenders and those are collectively marked
C-49 at page no. 553 of volume III.
23 CLAIM NO. 15 – Claim for interest at the rate of 18% per
annum on the amounts payable under claim nos. 1 to 14 (i.e. on
Rs. 14,91,89,931/-) with effect from 23-09-2015 to the date of
payment of the said sums in full and at the rate of Rs 18% as to be
accrued.
24 The Claimant is entitled to and claims interest at the rate of 18%
per annum on the amounts as claimed under claim nos. 1 to 11 with
effect from 23-09-2015 i.e. the date of constitution of the
Learnned A.T. to the date of full realization of the said amount. The
Learned A.T. is empowered to award such interest by virtue of the
power conferred under section 31(7) of the Arbitration and Conciliation
Act, 1996.
CLAIM NO. 16 – Claim for cost of Arbitration.

~ 87 ~
25 As the Respondent unnecessarily dragged the Claimant into
litigation for no fault of the Claimant, the Respondent is liable to pay
the cost of Arbitration Proceedings, details of which shall be submitted
by the Claimant on the concluding day of the arbitration sittings and
the Learned Tribunal may be pleased to award such costs of Arbitration
Proceedings to the Claimant.
Documents sought for disclosure
26 The Respondent at all relevant point of time and still is in
possession of the original estimate and other papers and documents
related to tendering process. The Claimant hereby calls upon the
Respondent to certify, bring files and disclose before the Learned
Tribunal the aforesaid Notice-Inviting-Tender, different contract
conditions made part of the tender and subsequently made part of the
contract through letter of acceptance and schedule of rates on the basis
of which the said tender was invited and all other relevant documents
in the possession of the Respondent required for adjudication of the
claims of the Claimant.

~ 88 ~
In the facts and circumstances as brought out hereinbefore, the
Claimant humbly prays before the Learned Arbitral Tribunal for the
following:-
That the Learned Tribunal may be
graciously pleased to
a) to award in full the amount(s) as
claimed in this statement of claims;
b) grant leave to add, to alter or to
amend the Statement of Claims as
may be deemed or to bring new
point(s) and/or evidence(s)
documentary or otherwise before or
during the course of hearing(s);
c) direct the Respondent to disclose any
other document/s in their custody
which may be found necessary for
adjudicating the matter during the
course of hearings to follow:

~ 89 ~
d) grant such other relief or reliefs as
the Learned Tribunal may deem fit
and proper
And for this act of kindness, the Claimant, as in duty bound, shall ever
pray.
For and on behalf of Claimant
VERIFICATION
I, R.K. Bagri, s/o Shri Late Mohan Das Bagri, employee and
authorized signatory of the Claimant do hereby declare that the
statements made in paragraph nos. 1 to 26 and sub-paragraphs
thereunder of the foregoing Statement of Claim are all true to the best
~ 90 ~
of my knowledge and the rest are of my humble submissions before the
Learned Tribunal and I sign this verification on this 21 st day of
December, 2015.
_____________________
SIGNATURE

SOC - EWS - 1R Final

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~1~

Sri Shiv Kumar,

IN THE MATTER OF:

The Arbitration and Conciliation Act, 1996

IN THE MATTER OF:

Agreement No. EWS -1 (R) for “Construction of

3 (three) Elevated stations at Salt Lake Sector –

V, Karunamoyee and Central Park including

track supporting viaduct structure of 140 m

length for each station on East-West Metro

IN THE MATTER OF ARBITRATION

M/s Simplex Infrastructures Limited., a

company registered under the Indian

Companies Act, having its registered office at

Simplex House, 27, Shakespeare Sarani,

Kolkata Metro Railway Corporation Limited (a

Government of India Undertaking), Munshi

Prem Chand Sarani (KMRCL Bhawan),

Kolkata – 700 021

The STATEMENT OF CLAIMS on behalf

of the Claimant abovenamed.

Most respectfully SHEWETH:

1. That the Claimant is engaged in the business of major Civil

Engineering construction activities of specialized nature including

metro railway, station building of metro railway, airport, hydra projects,

massive foundations and construction of highways. The Claimant has

since completed a number of prestigious and time-bound Projects

without any iota of dissatisfaction of any of its clients. The Claimant is

and equipment and technical personnel of high competency and

experience in the field of execution of Civil Engineering works of divers

2. That the Respondent had invited tenders, for “Construction of 3

(three) Elevated stations at Salt Lake Sector –V, Karunamoyee and

Central Park including track supporting viaduct structure of 140 m

pre-qualified contractors and the Claimant submitted its most

reasonable and economic tender on 08-04-2009. The statements,

positive assertions and representations made expressly and/or by the

implication by the Respondent in the tender documents were

considered to be true and factually correct by the Claimant while

submitting its bid.

3. The Claimant was requested in the negotiation meeting held on

12-05-2009 to offer suitable rebate on quoted rates for both the

tenders. Accordingly, the Claimant vide its letter dated 15-05-2009

condescended to offer rebates in respect of both the tenders subject to

certain conditions as mentioned in the said letter (C-1). The

Respondent vide its letter dated 18-05-2009 (Copy annexed and

marked “C-2” at page no. 3 of volume no II) had accepted certain

accept the conditions as proposed by the Respondent. The Claimant by

a letter dated 18-05-2009 (Copy annexed and marked “C-3” at page

no. 4 of volume no II) had confirmed the stipulations contained in

Respondent’s letter dated 18-05-2009 (C-2).

4. That the negotiated tender of the Claimant was finally accepted

by the Respondent vide letter dated 23-05-2009 (Copy annexed and

marked “C-4” at page no. 5 of volume no II). The accepted value of

acceptance dated 23-05-2009 (“C-4”) the Claimant was directed to

commence the work immediately and the date stipulated for

commencement of work was to be reckoned from 23-05-2009 i.e. from

the date of issuance of the letter of acceptance. In other words, no time

commencement of the work, which unequivocally suggests that that

the Respondent was equally ready, willing and agreeable to

perform its part of reciprocal obligations in order to enable the

Claimant to commence the work on 23-05-2009 and to complete

the same within a time frame of 20 months ending on 22-01-2011.