Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
M/s Totem-Premco (Jv) - Petitioner
Versus
M/s Rail Vikas Nigam Limited - Respondent
O.M.P. (COMM) 130 OF 2021
Decided On : 12-10-2021
Arbitration and Conciliation Act, 1996 – Section 9, 11 and 34 - Contract Agreement - Disputes - Arbitral Award - Petitioner entered is a Joint Venture (JV) between Totem Infrastructure Limited and M/s Premco Rail Engineers Limited - Petitioner was formed for purpose of submitting a bid pursuant to aforesaid NIT - Petitioner submitted its bid for executing project works - Petitioner’s bid was accepted by respondent and a contract for implementation of Project for an amount was awarded to petitioner by Notification of Award dated - Petitioner was called upon to furnish a Performance Security in accordance with Clause 41.1 of Instruction to Bidders, for an amount equivalent to 10% of agreed contract amount - Whether decision of Arbitral Tribunal in rejecting petitioner’s claim for refund of Bank Guarantees is patently erroneous as being inconsistent with its findings.
Finding of the agreed programme was for work involved at for 800 m of site made available and covered period - Contention that impugned award is required to be set aside on ground that Arbitral Tribunal had erred in concluding that petitioner had abandoned the works, is also unpersuasive - Finding that petitioner had abandoned the works is a finding of fact - Arbitral Tribunal has returned said finding after appreciation of various communications and material on record - Said finding warrants no interference in these proceedings - Impugned award cannot be set aside under Section 34(2A) or Section 34(2)(b)(ii) of A&C Act –
Result : Petition dismissed
JUDGMENT :
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter the ‘A&C Act’) impugning an Arbitral Award dated 03.06.2020 (hereinafter ‘the impugned award’) delivered by the Arbitral Tribunal comprising of three Arbitrators, Mr. M. Ravindra, Major General K.T. Gajria (Retired) and Justice (Retired) Jaspal Singh, as the Presiding Arbitrator. Whilst Justice (Retired) Jaspal Singh and Mr. M. Ravindra delivered the impugned award by majority, Major General K.T. Gajria (Retired) entered a dissenting opinion on 03.06.2020.
2. The impugned award has been rendered in the context of disputes that have arisen between the parties in relation to the Contract Agreement dated 13.11.2010.
3. By the impugned award, the Arbitral Tribunal entered an award for a sum of Rs.34,43,708. The Arbitral Tribunal further allowed interest at the rate of 10% per annum on the said amount calculated from 31.12.2015 till realisation. The Arbitral Tribunal did not accept the petitioner’s claim for refund of the amount recovered by the respondent by invoking the performance bank guarantee submitted by the petitioner.
Factual Context
4. On 30.06.2010, Rail Vikas Nigam Limited (hereinafter ‘the respondent’) issued Notice Inviting Tenders (NIT) for the “Construction of New Line between Dankuni-Furfura Sharif via Jangalpara (20 KM) in Howrah Division of Eastern Railway in the State of West Bengal, India” (hereinafter ‘the Project’), on the terms and conditions stipulated therein.
5. The petitioner entered is a Joint Venture (JV) between Totem Infrastructure Limited and M/s Premco Rail Engineers Limited. The petitioner was formed for the purpose of submitting a bid pursuant to the aforesaid NIT.
6. Pursuant to the said NIT, the petitioner submitted its bid for executing the project works on 17.08.2010. The petitioner’s bid was accepted by the respondent and a contract for implementation of the Project for an amount of Rs.89,70,13,691.61 was awarded to the petitioner by the Notification of Award dated 20.09.2010 (hereinafter ‘the NoA’)
7. In terms of the said NoA, the petitioner was called upon to furnish a Performance Security in accordance with Clause 41.1 of Instruction to Bidders, for an amount equivalent to 10% of the agreed contract amount (that is, for an amount of Rs.8,97,01,369.16) and further, a Bank Guarantee in terms of Clause 35.5 of Instruction to Bidders, for an amount of amount of Rs.19,37,779.20. The same were required to be furnished within twenty-eight days of the receipt of the said NoA. And, the petitioner furnished the Bank Guarantees as required.
8. Thereafter, on 13.11.2010, the parties entered into an agreement (hereinafter ‘the Agreement’), whereby the petitioner agreed to complete the Project within a period of twenty-four months from the date of commencement of work. The defect liability period was agreed as six months after the completion of the works
9. By a communication dated 30.11.2010, the petitioner informed the respondent about the various hindrances existing between “Take off Point to Ch:1391 from CSB of Dankuni-Region”. The petitioner also requested for a schedule for handing over of land as well as the drawings for minor bridges, major bridges and station buildings. The petitioner also stated in the letter that even after the lapse of thirty days from the proposed date of commencement of work, no working stretch was made available to it.
10. By several communications dated 20.12.2010, the petitioner informed the respondent about the requisite permissions that were required for completion of the Project.
11. On 07.06.2011, a meeting was conducted between the petitioner and respondent to discuss the progress of the work.
12. By a letter dated 30.06.2011, the petitioner requested the respondent to provide “hindrance free land along with good for cons
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
