CS(OS) No.1259/2000

Page 1

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS(OS) No.1259/2000

7^th January, 2010

SIMPLEX CONCRETE PILES (INDIA) LTD.

...Petitioner

Through:

Mr. V.P.Chaudhry, Senior Advocate with

Mr. Nitinjya Chaudhry, Advocate and

Ms. Sushma Sachdeva, Advocate.

VERSUS

UNION OF INDIA

....Respondent

Through: Mr. B.V. Niren, Advocate.

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.6442/2001 in CS(OS) No. 1259/2000

1. By this application, the respondent/Union of India has preferred

objections under Sections 30 & 33 of the Arbitration Act, 1940 to the Award

dated 28.2.2000 passed by the sole Arbitrator. The disputes which arose

between the parties pertained to awarding of a contract by the objector to the

petitioner for construction work of foundation and basement of the RR Hospital

at Delhi Cantonment. The counsel for the objector has only pressed the

2010:DHC:42

CS(OS) No.1259/2000

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objections as regards for Claim Nos. 2,7,12,18,26,27 and the Claim of interest,

as decided by the Award. I shall take up the arguments of the parties with

respect to each claim one by one.

2. The first objection pertains to award of a sum of Rs.14,39,340/- under

Claim No.2 by the Arbitrator. This amount has been awarded by the Arbitrator

because the Arbitrator has held that over-breaks in the rock base naturally occur

in the process of blasting and therefore, except to the extent of small

irregularities/levelling, where RCC is required to be filled up for levelling, the

excess filling of RCC has to be to the account of the objector where the over-

beaks in the rocks are of a large extent.

3. In order to appreciate the respective contentions of the parties it is

necessary to refer to the relevant terms of the contract being Clauses 3.1.3, 3.1.4

and the Schedule A of the contract which contains the list/descriptions of the

items of works. The relevant Clauses and items in Schedule A read as under:

“3.1.3

The bottom surface of excavation in rock shall be made as

level and true as possible prior to laying concrete, and any small

irregularities shall be filled up with cement concrete (1:4:8) at no extra

cost to Government.

3.1.4

In case excavation is done to depths greater than those

required, extra depth shall be made up with cement concrete (1:4:8) at no

extra cost to Government.”

“

3. Excavation over areas

not

exceeding

1.5

metre

deep

in

soft/disintegrated rock

and getting out

Per

Cubic

Metre

5000 Rs.50/-

Rupees fifty

only

2,50,000/-

4. Ditto

but

depth

exceeding 1.5 metre

and not exceeding 3

Per

Cubic

Metre

20000 Rs.55/-

Rupees fifty

five only

11,00,000

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CS(OS) No.1259/2000

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metre.

5. Excavating

over

areas, exceeding 1.5

metre deep but not

exceeding

3

metre

deep in hard rock and

getting

out

and

property stacking for

measurement.

Per

Cubic

Metre

7500 Rs.180/-

Rupees one

hundred

eighty only

13,50,000/-

6. Ditto-but

depth

exceeding

3

metre

and not exceeding 4.5

metre and ditto-

Per

Cubic

Metre

7500 Rs.185/-

Rupees One

hundred

eighty five

only

13,87,500/-

On the basis of these provisions the Arbitrator has accepted the

arguments and contentions of the claimant/petitioner/contractor and has held as

under:-

“ 47.8

There is no other provision in contract regulating the excavation

in hard rock or concerning this aspect. One has to analyse these provisions to

find out as to what the contract intended. Clause 3.1.3 deals with excavation in

hard rock while Clause 3.1.4 is generalistic in nature possibly covering all

types of excavations. Further, Clause 3.1.4 states that “In case excavation is

done” covering thereby the situa