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2015 Supreme(Del) 811
High Court of Delhi
V. KAMESWAR RAO, J.
Sukumar Chand Jain – Petitioner
Versus
Delhi State Industrial & Infrastructure Development Corporation Limited – Respondent
O.M.P. No. 81 of 2015 & I.A. Nos. 949, 950 of 2015
Decided On : 15-05-2015
For the Petitioner:Sandeep Sharma, Risha Mittal, Advocates.
For the Respondent:Amiet Andlay, Advocate.
The court upheld the arbitrator's decision based on the interpretation of the contract provisions and the factual findings.
Headnote:
Arbitration - Challenge to Arbitral Award - O.M.P. 81/2015 - [MODERNIZATION OF COMMUNITY WORK CENTRE] - [Arbitration and Conciliation Act, 1996, Section 34] - The court discussed the claims raised by the petitioner, the counter claims made by the respondent, and the issues framed by the arbitrator. The court analyzed the facts related to the work awarded, the dewatering process, and the delay in commencement of work. The legal provisions of the contract were interpreted to determine the entitlement of the petitioner to various claims. The court found that the conclusions of the arbitrator were justified based on the provisions of the contract and the facts of the case.
Fact of the Case:
The petitioner challenged an arbitral award rejecting several claims related to a construction project. The claims included expenses for obtaining a bank guarantee, loss of profit, and interest on certain amounts. The court analyzed the facts of the work awarded, the dewatering process, and the delay in commencement of work.
Finding of the Court:
The court found that the conclusions of the arbitrator were justified based on the provisions of the contract and the facts of the case.
Issues: The issues included the entitlement to various claims raised by the petitioner, the delay in commencement of work, and the interpretation of the contract provisions.
Ratio Decidendi: The court upheld the conclusions of the arbitrator based on the provisions of the contract and the facts of the case.
Final Decision: The petition was dismissed, and no costs were awarded.
V. KAMESWAR RAO, J.
I.A No. 949/2015
Exemption allowed subject to all just exceptions.
Application stands disposed of.
I.A No. 950/2015
This is an application seeking condonation of one day delay in filing the petition.
For the reasons stated in the application, and the learned counsel for the respondent has no objection, the delay in filing the petition is condoned.
Application stands disposed of.
O.M.P. 81/2015
1. The challenge in this petition is to the award dated September 16, 2014 to the extent that the learned Arbitrator has rejected claim Nos. 1,3,5,6 and 7 of the petitioner. The petitioner had raised the following claims before the learned Arbitrator;
(i) Claim No. 1 for Rs 10, 55,00,971/- on account of 1st RA Bill;
(ii) Claim No. 2 for Rs. 55,55,000/- on account of refund of original performance Bank Guarantee;
(iii) Claim No. 3 for Rs. 2, 78,300/- expenses for obtaining the bank guarantee;
(iv) Claim No. 4 for Rs. 15,54,000/- on account of refund of amount of EMD;
(v) Claim No. 5 for Rs. 1,64,40,221.24/- payable towards loss of profit;
(vi) Claim No 6 for interest @ 15 % P.A. on the aforesaid amounts from due dates till the date of payment;
(vii) Claim No. 7 for Rs. 10,00,000/- on account of cost of Arbitration Proceedings;
2. The respondent has also made three counter claims.
3. The learned Arbitrator has framed 10 issues on the claims and three issues on the counter claims. Subsequently, issue no. 3,5 and 7 were re-framed on January 23, 2014. The claim No. 1, 3 and 5 relates to issues No. 3, 6 and 8 respectively. Claim no. 6 is interest and claim No. 7 relates to issue No. 9.
4. The facts as noted by the learned Arbitrator, are, the respondent invited item rates tender for “Modernization of Community Work Centre (Composite Work) complete including civil development works, internal electrification & allied work at Jahangir Puri Phase-I”, for the estimated amount of Rs.7,76,98,634/-. The work was to be completed within 24 months from the 10th day of issuing Letter of Acceptance. The Letter of Acceptance was issued to the petitioner on January 16, 2008. The petitioner submitted performance guarantee dated January 22, 2008 for an amount of Rs.55,66,000/-. The total amount of the work was awarded for Rs.11,13,07,724.96/-. The Letter of Commencement was of February 2, 2008. Proceedings were held on November 26, 2007/December 5, 2007 wherein a query was put by one of the bidders seeking clarification “on the upper limit for the quantity of water to be pumped out”.
5. The reply to the clarification was that the quantity mentioned in the NIT is the upper limit and if beyond the same, any further pumping is required, the same shall be done by the contractor for which nothing extra shall be paid to him. The quantity shown against dewatering caused by sub-soil water was 87,500 litres and the rate shown was Rs.15/- and the amount was shown as Rs.13, 12, 500/-.
6. On claim no. 1, which is issue no. 3, the learned Arbitrator considered the said issue alongwith issue no. 2. The possession of one third of the site was taken by the petitioner on July 12, 2008. Before the petitioner could start the actual construction work of the basement and other stories of the building, it was required to dewater and pump out the sub-soil water and thereafter carry out the excavation for which sketch was given and thereafter, only, construction work was to start by laying down the base of the basement. The petitioner has written a letter dated July 30, 2008 to the respondent. By the said letter, the petitioner informed the respondent that the petitioner had started the work of pumping out water caused by sub-soil water on July 29, 2007 before excavation for foundation and basement could be done. The petitioner also informed that it had installed four numbers of water pumps for dewatering and the capacity of each of the pump is 20 litres of water per 18 seconds and that the pumps would run 24 hours in a day, round the clock till subsoil water would go down so
