NCC v SAIL 25.09.

2024
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Good afternoon Mathur Saheb, Jai Ganesh. Good afternoon. Have you received the written
submissions? Yeah, yeah.

Clement's written submissions, I have filed a hard copy today. Today I have received at 1.30,
I have not been able to in fact read it, because I received it at about 1.30. And the
respondents last night at about 8.30. Mother, they call it skeletal written submissions, then
what would be the actual written submissions? Skeletal, skeletal, the word used is skeletal, I
don't know what is the meaning of the word skeletal. Mother, you remember that matter
when we said convenience bundle, they have sent 36 bundles.

Yeah, that's right. Anyway. Sir, this is actually skeletal in Supreme Court terms.

Skeletal. Please Melon sir, good evening. Good evening.

Mr. George, probably the Junior Council has sent the so called skeletal written submission at
1.30 in the afternoon today. Please Melon sir. And the direction was to send it by 18th of
September.

Yes, yes, yes, because I see that. So, frankly I have not been able to go through your written
submission. Please.

Because there was no time at all. Anyway. Okay.

We shall start from page 8, Mr. George. Kindly, kindly. Melon sir, if Lordships permits me, if
Lordships would be so kind to have the submission which is there before my Lord.

Your written submission. Please Melon sir, I shall kindly have that. So, you want to start with
that.

Yes, so Melon sir, if Lordships permits me, Melon sir, just a two minute overview before I
take Lordships submission itself. Melon sir, there is just one matter of... Just one minute,
one minute. Just one minute.

Yes, please, yes, which page? Yes, Melon sir, before we open up the skeletal submission,
would Lordships just permit me just a five minute introductory note for Lordships kind
consideration. My Lord, in the present arbitration, which is subject matter of controversy
before the honourable tribunal. My Lord, the one overarching issue which the honourable
tribunal would engage with is, my Lord, the aspect of delay in completion of the work.

I will take Lordships to the relevant dates and events. But my Lord, kindly bear in mind, this
is a case where the original contract period for execution of the subject work by the
claimant has been prolonged for a period in excess of 42 months. 42 months? Yes, 42
months.

My Lord, the original period of completion was 24 months and it has actually become 42
months. One minute, the go ahead instruction to start work was given on 30th of January
2009. Please, Melon sir.
Is it correct? 30th of January 2009? Absolutely, Melon sir. And the schedule completion date
was 29th of January 2011. I am deeply obliged.

And then extension of time was given from 30th of January 2011 to 5th of August 2014.
Please. 42 months till 5th of August 2014.

I am deeply obliged. And the PAC and taking over certificate, PACs for preliminary
acceptance certificate, that was given on 8th of August 2014. These are the basic dates.

Deeply obliged, Melon sir. One minute. Am I, have I correctly written or there is a mistake in
my notes? Absolutely right, Melon sir.

Those are the dates. Absolutely right, Melon sir. Those are the dates.

Yes. What I just wanted to indicate therefore was, Melon sir, one of the overarching issues,
the main issues in fact, will pertain to the reasons for this delay, Melon sir. Why did the
contract get extended by this 42 month period? Because several of my claims, not all of
them, several of the claims before the Honorable Tribunal will in fact be impacted by this
determination, Melon sir.

By the? By this determination as to responsibility for the delay, Melon sir. Who was
responsible? So this is an overarching issue. Because it is an admitted position.

Contract took 42 months extra. It's an admitted position. Work is executed.

This is not a case, Melon sir, where there is termination of contract. No. Work is executed.

There is no dispute on that. Work is executed. Work is successfully taken over.

And please note one more aspect. When the extensions of time were granted, no liquidated
damages have been imposed at any point in time. Yes, yes, yes.

Yes. Now, Melon, there was never an imposition of liquidated damages. Work was
successfully taken over.

And work was extended. Time was extended. There is a provision for liquidated damages in
the agreement.

Absolutely there is, Melon. We'll take lots of stupid. There is.

And that provision. Just to orally disprove, what does it say, liquidated damages? What does
it say? Melon, it says, if there is any delay in the execution of the work which results in an
extension of the scheduled period of execution, then for that period of delay, the
respondent is entitled to impose upon the claimant a certain predefined percentage as
damages. Oh.

Now, another aspect, Melon. It's very important. And this is just the primer, Melon.
And I will immediately thereafter come to the note. Under the terms of the contract, the
respondent appointed an entity called MECON. MECON is a company, I mean, government
company, consultants.

They are consultants too for many of these. It's a government company. Public sector
undertaking.

Absolutely right, Melon. And beyond being a government company, Melon, in our contract,
the respondent appointed them as consultant slash site engineer. So, the MECON is the
entity that was actually operationalizing and executing this work on behalf of the
respondent.

Supervising the work on behalf of the respondent. They are probably consultants. Yes.

Correct. Deeply obliged. Now, Melon, we will show from the cross-examination that the
consultant had a critical role in supervising the execution of the work.

We will show from the cross and from their pleadings in the SOD. Now, why is this relevant?
Why am I saying this? Melon, at the relevant juncture, the consultant MECON, after
analyzing all the reasons for delay in the work, gave a comprehensive report running into
dozens of pages where it analyzed the reason for delay. And having analyzed the reason for
delay, it said that the responsibility for this delay was not on account of the claimant.

This report of MECON was later discussed in a meeting between the officials of the
respondent and MECON. And there is a minutes of meeting filed by the respondent on
record, which clearly reveals that the work was delayed on account of reasons attributable
to the respondent and not to the claimant. It's filed by them.

So now, Melon, the reason I am stressing on this is, the statement of defense, if Lordship
takes on delay, is an attempt to do a post-mortem of the reasons which apparently
prevailed and the responsibility for delay, completely ignoring the report of their own site
engineer, which report was acted upon by them for grant of extension of work. No, is it
mentioned in the agreement that MECON is the site engineer? It is clearly mentioned that
MECON is the consultant and that MECON is the one that will actually provide all the inputs
for execution of the work. It's clearly mentioned.

It is mentioned in their pleading also. I'll show Lordship their pleading in the SOD. It's clear.

Anything in the agreement regarding that? Absolutely, it's there, Melon. It's there in the
agreement. It's there in the pleading.

And it's also there in my cross-examination of RW1. RW1, we've asked almost 20 questions.
Mr. Judge, one thing.

Yes, please. You said the appointment of MECON was in terms of the contractual
prescriptions. Please, Melon.

Now, does that provide the work responsibility of MECON? It does, Melon. And it says
MECON will perform whatever work is delegated to it by the respondent. No, what I am
saying is, now, as you said, there were periodic reports of final report by MECON.
Please. There were periodic reports. Now, is there any provision in the contract, as we find
in several contracts, that if any party has any grievance about the report of the consultant,
science engineer or independent engineer, there is a mechanism provided to dispute it.

Does your contract contain similar clause? It does, Melon. It says that if there is a dispute in
terms of whatever determination is made, I am entitled to invoke the dispute resolution
clause. It's there.

So, at what stage? The next question would be when will you raise the dispute at what
stage? Please, Melon. Now, as a matter of fact, does that right of dispute given to both of
you or only you? Melon, it is in the contract given to me. Because we say the contract... Mr.
Jawaharlal, kindly show those provisions.

We will follow then your argument. Mr. Jawaharlal, you are right. You have to answer the
question my learned brother just said.

But first, let us see the provision. Then, we will understand your argument. I am deeply
obliged.

I will do that. So, Melon, would Lordships permit me to... No, because as you said, major of
your claims relate to the findings of MECON. So, why don't we see what is the role of
MECON? That is right.

I am deeply obliged. I am so deeply obliged. Melon, for that, please permit me to show
three things.

Number one, please see the contract. Can you screen share? Yes. So, Melon, we are just
screen sharing that.

So, Melon, Lordships may make a note. Three things I will show for MECON. Contract, their
pleading and the cross-examination of RW1.

First, please see the contract. Because we are also putting it up on screen. Which page?
Which clause? Yes.

So, Melon, Lordships has the contract agreement C1. Exhibit C1, Melon. Agreement.

Yes. Yes. Before this, please come to... Little larger.

I have got the original copy of the agreement. But still, on the screen, I will make it larger.
Very well.

Very well. I don't think... That's right. Which clause? Which page? Yes.

Melon, Lordships may kindly have with me page 131. They are just zooming. Melon, this is
page 131.

At the bottom. My Lord Justice Basayat has that, Melon. Page 131, Article 2. No.

Yes. Yes. Yes.

Lordships may see, Melon. If Lordships may see on the screen, I am referring to D. D for
Delhi. On the top of that page, Lordships will see.

Okay. Okay. Okay.

That is... Okay. Okay. Okay.

Shall be the consultant for the facilities. I am DP of Life. Now, Melon, Lordships would kindly
have with me the next relevant provision.

Please see, Melon, Article 6 at page 134. Please see 6.1, Melon, as and when Lordships will
look. Article, which article? 6.1. Lordships may kindly see 6.1, which Lordships would find at
page 134.

So, Melon, the consultant, if Lordships sees, which is MECOM as identified, shall have all
such functions as are delegated to him in the contract or as may be delegated to him by the
employer from time to time. Now, Lordships have seen, Melon. Consultant shall have such
functions.

Please. As are delegated to him. DP of Life.

Now, Melon, before I take Lordships to the remaining important provisions for the
consultant, please now make reference to the Statement of Defence. Paragraph 47. Please
see the respondent's own case.

Paragraph 47, Melon. 47? Yes, of the Statement of Defence, Melon. Page 46.

No, brother. SOD, so page 47 is page 51. This is the amended SOD, Melon.

Melon, Lordships may see the amended SOD. In fact, they have amended their SOD already.
Yes, this amended SOD dated 28th of January 2021.

Yes. So, Lordships has Para 47, Melon. Paragraph 47.

47? Amended SOD, Mr. Mahesh Singh? Melon, just give me one moment, Melon. That is on
page 51. Amended SOD.

Just give us one moment. We'll just pull that out. Lordships may then have, Melon,
paragraph 2.3. Of the? Of the SOD, Melon, page 3. Lordships has that, Melon.

So, Lordships will note, as per the respondent, MECON Limited, Ranchi, which is also a
government enterprise, is the consultant, now please note, very important, independent
engineer appointed by the employer for technical monitoring and oversight of the
contracted works and is hereinafter referred to as the consultant. MECON is consultant. But,
Melon, please note, consultant slash independent engineer appointed by the employer for
technical monitoring and oversight of contracted work.

So, please note, this is the respondent's own understanding of MECON's role. Now, Melon, a
question will arise, I'm so sorry, as I am a Lordships' assistant. For technical monitoring and
oversight.
Please. Yes. Now, Melon, the contract refers to the consultant at various junctures in terms
of the activities that he or she is to perform.

But, what is important from our perspective today is, what did the consultant actually do in
this project? That's the first query that Lordships will ask of me. Theoretically, he may be
given hundreds of functions. But, what did he actually do in this project? The best, Melon,
enumeration of that, Lordships will find in the cross-examination of RW1.

That's a part of my convenience compilation, Melon, that I have filed today, for the aspect
of delay. So, if Lordships has that, we have put everything in one folder. If Lordships permits
me, reference to my brief convenience compilation, which is filed today, in relation to
prolongation of contract.

And the skeletal submission, yes. Yes, along with the skeletal submission, we have given a
volume, Melon, yes. Which page you are referring to? So, Melon, I am referring Lordships to
the cross-examination of RW1 Pratik Ghosh, which begins at page 169, Melon.

We are also putting it up on the screen for Lordships kind consideration. Page? Page? Yes,
please have with me, Melon. It begins at page 169, but what I wish to trouble my Lord with
is at page 170.

Please note, Melon, Nikon's intimate involvement in this project, which Lordships will find,
One minute, just one minute. I am so sorry, I am so sorry. I apologize.

Dr. Sharma, sir, I hope the screen is visible, sir. Yeah, yeah, yeah. Actually, I have a
convenience compilation in my laptop also.

Very good, very good. Yes, which question? Yes, please have with me, Melon, question eight
onwards, if Lordships permits me. Was a detailed project report prepared for the present
project before issuance of tenders to the interested bidders? Yes.

Which is the entity that prepared this detailed project report? Nikon, which is consultant of
respondent. Now, ten is very crucial, Melon. Ten is extremely crucial.

Is it correct that the scope of work to be executed under subject project was based on
detailed project report prepared by Nikon? Answer is yes. So please note, Melon, the scope
of the work which underlines this contract is itself based on Nikon's preliminary report.
Now, Melon, please note question number 28 with regard to extension of time.

That's at page 173, Melon. Question number? 28, Melon. And I am only now showing,
Melon, this cross-examination of RW1 is very critical on many aspects.

Right now, I am only focusing on Nikon. I'll come back to this for other aspects. Please note
28.

Who were the persons in the respondent organization who dealt with request for extension
of time as requested by the claimant in the present project? Shri A. K. Mishra for package
48A2. That's what we are concerned with today, Melon. And G. Bandopadhyay for 48B2 on
the advice of consultant Messers Nikon.
So, we are at the moment hearing 48A2. 48, yes. Deeply appreciated.

Shri A. K. Mishra. Absolutely. Melon, I was only stressing on the fact that this was
undertaken on the advice of Messers Nikon.

The determination of extension of time. Yes. Now, Melon, please have question 51.

At page number 176. Now, Melon, we come to their specific role on the site, Nikon. And this
is extremely crucial on various aspects.

Please see 51, Melon. Please clarify whether it is the respondent or Nikon that finally
prepares and issues the structural design drawings. It is done by consultant Nikon.

So, Nikon, Melon, prepares structural design drawings on the basis of which the work is
executed. It's actually approved by them. And on that basis, the work is done.

Once I, Melon, prepare the drawing based on their inputs, it is sent to them. Then they
certify the same. So, the respondent says, I am not involved in this process.

It's done by Nikon. So, please note one responsibility of Nikon. Now, please see 52, Melon.

What was the overall role and responsibility of Nikon in execution of the work under IISCO
Steel Plant? That's our steel plant, Melon, the one that we are concerned with. The scope of
Nikon included design engineering, procurement services, contract management services,
and overall project management including site supervision. So, this is the broad scope and a
very comprehensive scope of work that Nikon undertakes at the site.

Now, please see the follow-up questions, Melon, that are leading us to the ultimate result,
53. Please explain what is the exact scope of activities required to be undertaken under
overall project management including site supervision as referred by you in your answer to
52. And his response, Melon, says, exact scope included monitoring of supplies.

Now, next is very crucial, Melon. Coordination for site work. Please make a note of that,
Melon.

Coordination for site work, safety during erection. Now, next, very crucial, timely
completion of the packages and commissioning of the plants. So, site coordination and
timely completion was squarely within the scope of Nikon.

Monitoring, Melon. That's right. Please, Melon.

Monitoring, absolutely. Absolutely what you said. Now, please note 54, Melon.
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