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IN THE HIGH COURT OF DELHI AT NEW DELHI
C. Hari Shankar, J.
M/s Ilfs Engineering And Construction Company Limited - Appellant
Versus
M/s Indian Strategic Petroleum Reserves Limited - Respondent
Arb P No. 578 of 2020
Decided On : 15-04-2021
Arbitration - Dispute - Arbitration and Conciliation Act, 1996 - Clauses 1.0.34.0, 6.2.5.0, 6.3.3.0, 6.6.0.0, 6.6.1.0, 6.6.2.0, 6.6.3.0, 6.6.3.1, 9.1.0.0 - The petitioner sought reference of its dispute with the respondent to arbitration under Section 11(6) of the 1996 Act. The dispute arose from a contract dated 9th September, 2014, where the respondent entrusted the work of laying a pipeline to the petitioner. The petitioner raised claims for compensation towards cost escalation, which were rejected by the respondent. The controversy revolved around three communications addressed by the petitioner to the Engineer-in-Charge. The petitioner invoked the provision for arbitration contained in Clause 9.1.0.0 of the GCC, and the respondent denied the arbitrability of the disputes and the payability of any amount to the petitioner. The Court found that the claims were notified within the stipulated period and submitted along with the final bill in accordance with Clause 6.6.3.0 of the GCC. The Court appointed an arbitrator for the respondent and directed the parties to commence arbitral proceedings.
Fact of the Case:
The petitioner sought reference of its dispute with the respondent to arbitration under Section 11(6) of the 1996 Act. The dispute arose from a contract dated 9th September, 2014, where the respondent entrusted the work of laying a pipeline to the petitioner. The petitioner raised claims for compensation towards cost escalation, which were rejected by the respondent. The controversy revolved around three communications addressed by the petitioner to the Engineer-in-Charge.
Finding of the Court:
The Court found that the claims were notified within the stipulated period and submitted along with the final bill in accordance with Clause 6.6.3.0 of the GCC. The Court appointed an arbitrator for the respondent and directed the parties to commence arbitral proceedings.
Issues: The issues revolved around the arbitrability of the disputes and the payability of any amount to the petitioner.
Ratio Decidendi: The claims were notified within the stipulated period and submitted along with the final bill in accordance with Clause 6.6.3.0 of the GCC, making the disputes arbitrable under Clause 9.1.0.0.
Final Decision: The Court appointed an arbitrator for the respondent and directed the parties to commence arbitral proceedings.
JUDGMENT
C Hari Shankar, J. - By this petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ( the 1996 Act ), the petitioner seeks reference of its dispute with the respondent to arbitration.
2. The issue in controversy being limited, equally limited need be the reference to the factual fasciculus in which the dispute arises.
3. By contract dated 9th September, 2014, respondent entrusted, to the petitioner, the work of laying of a pipeline from Land Fall Point (LFP) to Mangalore/Padur Cavern for the Strategic Storage of Crude Oil at Padur. The contract contained General and Special Conditions, i.e. the GCC and the SCC, respectively.
4. Vide letter dated 9th February, 2018, the petitioner raised claims for compensation towards cost escalation borne by it in performing of the contracted work. The claims were rejected by the respondent vide letter dated 16th February, 2018. The petitioner rejoined vide letter dated 3rd April, 2018.
5. At this juncture, it would be appropriate to reproduce Clauses 1.0.34.0, 6.2.5.0, 6.3.3.0, 6.6.0.0, 6.6.1.0, 6.6.2.0, 6.6.3.0, 6.6.3.1 and 9.1.0.0 of the GCC, governing the contract between the parties, thus:
1.0.34.0 Notified Claim shall mean a claim of the CONTRACTOR notified in accordance with the provisions of Clause 6.6.1.0.
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6.2.5.0 Payments of the amount(s) due on the Final Bill to the extent certified by the Engineer-in-Charge, shall be made within 84 (Eighty Four) days from the due date as specified in Clause 6.2.4.0 hereof, subject to the deductions provided in Clause 6.2.5.1.
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6.3.3.0 The rates stated in the Price Schedule and the lump sum price(s) shall not be subject to escalation or increase for any reason whatsoever.
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6. 6.0.0 CLAIMS BY THE CONTRACTOR
6.6.1.0 Should the CONTRACTOR consider that he is entitled to any extra payment or compensation in respect of the works or supplies over and above the amounts due in terms of the Contract as specified in Clause 6.3.1.0 hereof, the CONTRACTOR shall give notice in writing of its claim in this behalf to the Engineer-in-Charge and the OWNER within 14 (Fourteen) days from the date of the issue of orders or instructions relative to any work(s) for which the CONTRACTOR claims such additional payment or compensation, or from the date of the happening of any other event upon which the CONTRACTOR bases such claim, as the case may be. Such notice shall give full particulars of the nature of such claim, grounds on which it is based, and the amount claimed. The OWNER shall not anywise [sic] be liable in respect of any claim by the CONTRACTOR unless notice of such claim shall have been given by the CONTRACTOR to the Engineer-in-Charge and the OWNER in the manner and within the time aforesaid, and the CONTRACTOR hereby waives and relinquishes any and all claims and all his rights in respect of any claim which is not notified by the CONTRACTOR to the Engineer-in-Charge and the OWNER in writing in the manner and within the time aforesaid.
6.6.2.0 The Engineer-in-Charge and/or the OWNER shall be under no obligation to reply to any notice of claim given or claim made by the CONTRACTOR within the provisions aforesaid or otherwise, or to otherwise reject the same, and no omission or failure on the part of the Engineer-in-Charge or the OWNER to reject any claim made or notified by the CONTRACTOR nor any consideration thereof or dealing therewith shall be deemed to be an admission by the OWNER of the validity of such claim or waiver by the OWNER of the provisions of Clause 6.6.1.0 hereof.
6.6.3.0 Any or all claims of the CONTRACTOR notified in accordance with the provision of Clause 6.6.1.0 hereof as shall remain/ persist at the time of preparation of the Final Bill by the CONTRACTOR shall be separately included in the Final Bill prepared by the CONTRACTOR in the form of a Statement of Claims attached thereto, giving particulars of the nature of such claim, grounds on which it is based, and the amount claimed, and shall be supported b
The claims were notified within the stipulated period and submitted along with the final bill in accordance with Clause 6.6.3.0 of the GCC, making the disputes arbitrable under Clause 9.1.0.0.
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