OMP 12/2010

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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OMP No. 12/2010

13^th January, 2010

M/S. SMJ-RK-SD(JV)

...Petitioner

Through:

Ms. Kiran Suri, Advocate

VERSUS

NATIONAL HIGHWAYS AUTHORITY OF INDIA

....Respondent

Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

1.Whether the Reporters of local papers may be allowed to see

the judgment?

2. To be referred to the Reporter or not?

3.Whether the judgment should be reported in the Digest?

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JUDGMENT (ORAL)

VALMIKI J.MEHTA, J

I.A. No.295/2010(Exemption) in O.M.P. No.12/2010

Exemption is allowed subject to all just exceptions.

I.A. is disposed of.

I.A. No.296/2010(Condonation of Delay) in O.M.P. No.12/2010

For the reasons stated in the application, the delay in filing the

petition is condoned.

I.A. is disposed of.

2010:DHC:147

OMP 12/2010

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OMP No. 12/2010

1.

By this petition under Section 34 of the Arbitration and

Conciliation Act, 1996 the petitioner challenges the impugned Award dated

5.9.09 passed by the Arbitral Tribunal. The Arbitral Tribunal was constituted to

determine the disputes which arose between the petitioner as contractor and the

respondent as employer in the work awarded to the petitioner of widening of 4/6

lanes and strengthening of existing two lane carriage way of NH-5 in the State

of Orissa from Km 335.642 to Km 387.700 (Sunakhala to Khurda)-Contract

package OR VI.

2.

The only issue which has been urged before this Court by counsel

for the petitioner is with regard to the petitioner’s claim of interest payment

with respect to alleged illegal recoveries which were made by the respondent

from the interim bills of the petitioner.

3.

Ms. Suri, learned counsel for the petitioner, has invited my

attention to Sub Clauses 60.1 (d),(e),(f),(h),(i) as also Sub-Clause 60.2 and Sub-

Clause 60.5 in support of her arguments. According to the counsel, out of the

interim bills 10% of the amount which can be retained by the respondent can

only be towards 60.1(d) (e) and (f) and not the total value of the certified

Interim Payment Certificates.

4.

I am afraid I cannot agree with the contention as raised by the

counsel for the petitioner. This is because the Arbitrators in the impugned

2010:DHC:147

OMP 12/2010

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Award have rightly declined the claim of the petitioner on two counts. The first

aspect which has been held against the petitioner is that the aforesaid Clauses

and Sub-Clauses of Clause 60 of the contract, will yield to the document being

the Appendix to the Bid, inasmuch as and admittedly, as per the priority of

documents fixed under the contract, it is the Appendix to the Bid which prevails

and not COPA/GCC and SCC where the aforesaid Clause 60 and its sub-

Clauses are found. It is very clearly mentioned in the Appendix to the Bid that

the retention amount out of the Interim Payment Certificates is to an extent of

10% of the Interim Payment Certificates and it is not restricted in any manner

only to the deductions from some items/heads as per sub Clause 60.1(d), (e) and

(f) of the Interim Payment Certificates. The second point which has been

considered by the Arbitrators to hold the issue against the petitioner is that for

as many as 20 Interim Payment Certificates, the employer had deducted 10% of

the amount towards retention money without any objection from the petitioner.

Twenty Payment Certificates would be for 20 months of work. This means that

the contractor has itself for a very long time understood that the amount of

retention money of 10% is out of the total Interim Payment Certificates and not

only for from limited heads of Clause 60.1.

5.

The relevant portion of the impugned Award which gives the

aforesaid findings in this regard runs as under:

“4.1

The priority of the various documents forming part of the contract is

stipulated in Sub-Clause 5.2.2. of COPA. According to this the Appendix to Bid

gets prio