I have some queries on how the Indian Contract Act 1872 works...as we are planning to build a case against the Client for the reason below:
We are reputed Construction Contractor doing Government Project in India. Client/ Employer has enormously delayed handing over of the Site to us because of his own problems with the land owners.
Contract Condition says “For any such delay in handing over of site, Contractors will be entitled to only reasonable extension of time and no monetary claims whatsoever shall be paid or entertained on this account”.
This condition was pricipally agreed on good faith on Employer anticipating that there may be reasonable / mere/ minor slippages that are negligible in terms of costs, but it was delayed enormously as the work-front was not available as planned and ended up incurring huge costs due to Idled resources.
I understand from Indian Arbitration and Conciliation Act 1996 that the Arbitral Award shall not be set aside unless a new evidence or a different stand from either party is required to do such.
Therefore, please advise how the following heads works in Arbitration and Indian Courts...
OPTION 1. Contra Proferentem: Because there is an ambiguity in understanding delays which are MINOR or MAJOR, which we are planning to deal in the Arbitration.
OPTION 2. Breach of Implied covenants of Good faith and Fair dealing: Because Employer knew this very well that he is going to delay the Site possession enormously and did not disclose the fact and passed on that risk to the Contractor cunningly, which we are planning to proceed in the Court if Arbitration fails.
I further understand that we in India follow Common Law same as the UK, and if Arbitration fails by using the first option, we shall take the second option above to defend our stand, but please clarify how this shall be treated in Indian Courts.
Bottom line is Contractor has to be compensated fairly due the reasons not attributable to him.
Your Expert advise is required to me on how to proceed with this.