JUDGMENT

[Physical Court Hearing/Hybrid Hearing (as per request)]

Tara Vitasta Ganju, J.

TABLE OF CONTENTS

Preface

Background

MBL Submissions

RITES Submissions

Issues

The Statute and the Law

Conclusion

Directions

Preface:

1. The present Appeal has been filed under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 [hereinafter called "the Act"] against Judgment dated 14.10.2022 passed by the learned Single Judge in OMP(COMM) No. 98/2022 [hereinafter called "Impugned Judgment"] whereby the learned Single Judge has dismissed the Petition filed by the Appellant [hereinafter called "MBL"] under Section 34 of the Act against the Order dated 08.01.2022 passed by the Arbitral Tribunal [hereinafter called "Impugned Arbitral Order"].

Background:

2. Briefly, the facts in issue are that MBL filed a Statement of Claims against the Respondent No. 1 [hereinafter called "RITES"] on 15.05.2018 in respect of a contract for construction of Police lines and residential quarters for the Delhi Police [hereinafter called "DP"] at Kondli in Delhi [hereinafter called "the Project"].

2.1 An Agreement dated 05.07.2012 was executed between MBL and RITES. The commencement date of the Project was 02.06.2012 and the stipulated date of completion was 01.06.2014.

2.2 Disputes arose between the parties during the term of the Project. Pursuant thereto, MBL filed a Petition under Section 11 of the Act being ARB.P. 12 of 2018, for appointment of an Arbitrator. By an order dated 23.01.2018, learned Single Judge of this Court appointed an Arbitral Tribunal comprising a Sole Arbitrator, one Mr. Ashok Kumar Purwaha [hereinafter called "Arbitral Tribunal"] to adjudicate the disputes between the parties.

2.3 The Arbitral Tribunal entered upon reference on 22.03.2018. MBL filed its Statement of Claim on 15.05.2018 for recovery of a sum of Rs.21,95,30,096/- along with pendente lite and future interest at the rate of 18% p.a. Since, the Project was still in progress at that time, the Statement of Claim filed by MBL included only those claims which arose upto the date of filing.

2.4 Subsequently, a Statement of Defence and Counter Claim amounting to Rs. 18,25,45,674/- with litigation expenses was filed by RITES on 14.08.2018.

2.5 The Project was completed on 06.03.2019, during the pendency of Arbitral proceedings.

2.6 The Arbitral proceedings had, in the meantime, progressed to the evidence stage. MBL filed its evidence by way of an affidavit and commenced examination of its witnesses. The cross examination of the witness was undertaken by RITES on 09.01.2020 and the witness was partly cross examined.

2.7 On 03.02.2020, MBL submitted its Final Bill [23rd Running Account Bill] in the sum of Rs.9,36,89,166/- to RITES, for work done up to the completion of the Project [hereinafter called "Final Bill"]. This was ostensibly done since the Statement of Claim was filed prior to the completion of the Project on 15.05.2018.

2.8 Thereafter, there was a hiatus in the Arbitral proceedings due to the advent of COVID-19. Proceedings were resumed on 08.12.2020, when inter-alia, it was directed by the Arbitral Tribunal, that the agreed Final Bill be filed by 18.12.2020 and after receipt thereof, MBL would be at liberty to file additional evidence by way of an Affidavit. The relevant extract of the Arbitral proceedings on 08.12.2020 reads as follows:

"5. Understand that the project is complete and the final bill have been submitted by the Claimant. In view of above, the Respondent is directed to present the Final bill as agreed between the parties by 18.12.2020.

6. After the receipt of the final bill the claimant would be at7 liberty to file additional evidence by way of affidavit, if any, on or before next date of hearing...."

[Emphasis is ours]

2.9 The Final Bill was reviewed by RITES and only partially accepted and a sum of Rs.4,34,12,519/- was held as payable by RITES.

2.10 An application for bringing on record the subsequent developments and further claims was filed by MBL on 05.01.2