* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 13.01.2026 Judgment pronounced on: 21.01.2026 + O.M.P. (COMM) 337/2023 S AND S CONSTRUCTION CO .....Petitioner Through: Mr. Kunwar Chandresh & Ms.

Poonam Prasad, Advs.

versus UNION OF INDIA THROUGH E E B F D II .....Respondent Through: Mr. Vikram Jaitley, CGSC with Ms. Shreya Jaitley, Adv. with Mr. Rakesh Kumar, EE, BFD Bikaner CPWD.

CORAM:

HON'BLE MR. JUSTICE AVNEESH JHINGAN

J U D G M E N T

1. This petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short „the Act‟) challenging the arbitral award dated 18.04.2023 (for short „the Award‟).

2. The relevant facts are that the petitioner/claimant was awarded a tender by the Executive Engineer, Border Fencing Division-II, CPWD, New Delhi and the contract was entered on 04.06.2010. The estimated cost of work was Rs.19,43,10,348/-. The petitioner furnished a performance bank guarantee equivalent to five percent of the tender amount. The work was to be completed within eight months. The completion certificate mentioning the defects in the work done was issued on 17.12.2019. Dispute between the parties in compliance with Clause 25 of the General Conditions of Contract (for short „the GCC‟) was referred to arbitration. The arbitrator was appointed on 19.04.2022 and the proceedings culminated in the impugned award. Out of the sixteen claims made by the petitioner, seven were rejected. The counter-claims filed by the respondent beyond the period prescribed under Section 23(4) of the Act were rejected. Hence, the present petition.

3. This petition is filed being aggrieved by the rejection of the following claims.

S.No. CLAIM NO. CLAIM DESCRIPTION

1. Claim No.1 Claim on account of illegally withheld amount for non-sanctioning of deviation items amounting to Rs.13,00,000/-

2. Claim No.3 The claim of Rs.9,50,285/- for extra interest recovered on Mobilization Advance for the delay in work the beyond the stipulated date of completion.

3. Claim No.4 Claim of interest on account of amount wrongfully withheld for Milestones amounting to Rs.16,93,470/-

4. Claim No.5 Claim amounting to Rs.2,84,07,336/- for damages due to rise in price for material other than material covered under Clause 10CA used in the work done during the extended period (Claim amended to Rs.357,93,677 at rejoinder stage).

5. Claim No.6 Claim of damages amounting to Rs.9,73,66,774/- on account of onsite and off site overhead during prolongation of contract.

6. Claim No.7 Claim amounting to Rs.7,45,40,000/- on account of work done in R.D. 2.4 km to 27 km in the C/o ITBP Road from Nyu Sobla to Sela Tedang.

7. Claim No.12 Claim amounting to Rs 1,47,19,500/ on account of non-payment for extra work executed to restore the road connectivity after disaster in June 2013.

4. Learned counsel for the petitioner argued with regard to claim no.1, that the withholding/deduction of Rs. 13,00,000/- was without issuance of notice and further that no deduction could be made under clause 17 of the GCC.

4.1 With regard to claim no.3, the submission is that the delay and prolongation of the work was not attributed to the petitioner and the interest of Rs.9,50,285/- was wrongly charged on the mobilisation advance for the period of delay beyond the stipulated date of completion. The argument is that the mobilisation advance was invested in the project and not utilised by the petitioner.

4.2 Vis-a-vis claim no. 4, the argument is that the amount was wrongly withheld for failure of the petitioner to complete the work upto the stipulated milestones and the petitioner should be compensated with interest. The submission is that once the time to complete the work was extended, the milestone should have been rescheduled. Grievance is that the claim was rejected by a non-

speaking award.

4.3 So far as claim no.5 is concerned, the grievance is that the arbitrator erred in considering that the claim was not covered under Clause 10CC of the GCC whereas the claim was made under Sectio