O.M.P. (COMM) 455/2018

Page 1 of 19

$~P-1

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 09.11.2023

+

O.M.P. (COMM) 455/2018 & I.A. 3244/2023.

M/S ORIENTAL STRUCTURAL ENGINEERS PVT.LTD.-M/S

KMC-JOINT VENTURE

..... Petitioner

Through:

Ms. Kiran Suri, Senior Advocate with

Mr. Hitendra Nath Rath and Ms.

Aishwarya Kumar, Advocates.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA

(NHAI)

..... Respondent

Through:

Mr. Manish K. Bishnoi, Mr. Nirmal

Prasad and Ms. Pallavi Singh Bishnoi,

Advocates.

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

J U D G M E N T

1.

By way of this petition under Section 34 of the Arbitration and

Conciliation Act, 1996 [hereinafter, “the Act”], the petitioner assails an

arbitral award dated 21.04.2018, by which a three-member Arbitral Tribunal

has adjudicated disputes between the parties under a Contract Agreement

dated 04.11.2004 [hereinafter, “the Contract”].

A. Facts

2.

The Contract was awarded by the respondent-National Highways

Authority of India [hereinafter, “NHAI”] to the petitioner for construction of

part of a road known as the “Allahabad Bypass Project”. BCEOM-LASA JV

[hereinafter, “the Engineer”] was nominated by NHAI as the Engineer under

the Contract.

According to the petitioner, work under the Contract was

Digitally Signed By:SHITU

NAGPAL

Signing Date:09.11.2023

18:20:19

Signature Not Verified

O.M.P. (COMM) 455/2018

Page 2 of 19

substantially completed by 15.10.2009 and notice was given to the Engineer

for taking over the work on 15.11.2009. The Engineer issued Taking Over

Certificate under Clause 48.1 of the General Conditions of Contract

[hereinafter, “GCC”] on 11.12.2009. By a communication dated 15.11.2011,

the Engineer enumerated a list of pending work to the petitioner prior to

issuance of the Defects Liability Certificate.

3.

A joint meeting was held on 25.11.2011 with regard to the remaining

work to be completed. The petitioner agreed to complete the remaining work

and remedy the defects. The minutes of the aforesaid meeting contain

specific provisions with regard to claims for additional costs due to

reduction in scope of chain link fencing and crash barrier. The consequence

of these provisions is the subject matter of controversy in this petition and

they will be dealt with in detail later in this judgment.

4.

The Engineer issued the Defects Liability Certificate on 12.01.2012,

under Clause 62.1 of the GCC. Pursuant thereto, the petitioner submitted

supporting documents for draft final bill on 25.04.2012. On 06.05.2013, the

Engineer issued Interim Payment Certificate No. 57 [hereinafter, IPC No.

57] against the statement submitted by the petitioner, wherein it determined

the amount due to the petitioner. It recommended payment of a sum of Rs.

1,98,30,849/- against the petitioner’s final bill.

5.

It appears from the record that the respondent, thereafter, by a

communication dated 20.06.2013, pointed out certain discrepancies to the

Engineer, which resulted in a report of the Engineer dated 12.08.2013,

stating that the Defects Liability Certificate was issued after joint inspection

on 05.01.2012 and that IPC No. 57 was issued after detailed measurement of

each item. The record reveals that a meeting was thereafter held between the

Digitally Signed By:SHITU

NAGPAL

Signing Date:09.11.2023

18:20:19

Signature Not Verified

O.M.P. (COMM) 455/2018

Page 3 of 19

Engineer and the respondent on 09.04.2014, pursuant to which the Engineer

issued a letter dated 06.05.2014, revising IPC No. 57 downwards.

Significantly, the petitioner was admittedly not party to the documents and

meetings dated 20.06.2013, 12.08.2013, 09.04.2014, and 06.05.2014.

6.

Unaware of these developments, the petitioner sent to the respondent

a letter dated 28.09.2015, demanding payment of the amount due in terms of

the Engineer’s certification dated 06.05.2013 [original IPC No. 57]. The

petitioner relied upon Sub-Clauses 60.8(a)(i), 60.8(b) and 60.11 of the

Conditions of Particular Application [hereinafter, “COPA”]. As the said