9911796707
TMI Blog2015 (9) TMI 1705X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the petitioner herein by rejecting the said claims awarded by the Arbitrator. Also the amount under Claim no.11 as awarded will stand reduced from a sum of ₹ 7,48,871/- to ₹ 683,428. Claim no.27 being the claim of interest on the awarded amount will also now get proportionately reduced. Thus, on account of acceptance of some of the objections of the petitioner, the figure of the awarded amount of ₹ 1,09,08,393/- will stand reduced by ₹ 11,56,876/- and hence the net awarded amount to the respondent will come to ₹ 97,51,517/-. On this amount respondent will be entitled to interest at 12% per annum from the date of the Award till the date of actual payment by the petitioner - the objection petition is allowed to the limited extent by reducing the net awarded amount to the respondent herein and against the petitioner to a sum of ₹ 97,51,517/- alongwith interest at 12% per annum simple from the date of the Award viz. 21.3.2006 till the date of payment of this amount by the petitioner to the respondent herein. - O.M.P. No.410/2007 - - - Dated:- 2-9-2015 - MR. VALMIKI J. MEHTA, J. For The Applicant: Ms. Biji Rajesh, Adv. for Mr. Gaura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator. 5(i). The first objection which was raised by the present petitioner was that the respondent herein had given an undertaking on 14.8.2001 that the respondent will not claim any damages from the petitioner and therefore the arbitration claim could not have been filed for damages. (ii) The second objection was that the respondent received the payment of the final bill on its issuing a No Claim Certificate dated 8.12.2003 and therefore the respondent after taking the amount of ₹ 4,78,710/- in full and final settlement cannot now file arbitration proceedings with respect to the amounts in question. 6(i). With regard to the first preliminary objection, the Arbitrator has rejected the same by observing that admittedly the petitioner herein gave extension of time without levy of compensation upon the respondent herein upto 30.4.1998, and once that is so, it shows that the petitioner accepts that the respondent was not guilty of delay in performance of the contract upto 30.4.1998, and hence the undertaking issued on 14.8.2001 i.e well after the completion of the contract in question on 30.4.1998 would be under coercion. (ii) With respect to the second preliminary ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in mind. The EOT has been granted without levy of compensation, the claimants cannot be blamed for any delay in work. This issue is therefore decided in favour of the claimants. ii) The respondent submitted that the entire claim of the claimant is not maintainable as on 8.12.2003 the claimant accepted the final bill and furnished a No Claim Certificate and accepted ₹ 4,78,710/- in full and final settlement and thus cannot claim anything more now. The claimants stated that the said No Claim Certificate was given under duress and coercion and the same was withdrawn on 12.12.2003 (Exhibit C-153). The claimant submitted that the No Claim Certificate was given as the respondents were not releasing heir legitimate payments and it had been six years since they were waiting and they had no option but to do as the respondents wanted so that whatever amount was possible was released. The claimant submitted that as the No Claim Certificate was withdrawn, this matter should be of no consequence. After going through both parties submissions and also after going through the court citations submitted by the respondents and claimants and their respective replies to them, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, the claimant claims three amounts for three periods as under:- 1. On whole amount for an amount of ₹ 21,83,270.00 i.e 5% of the contract price of ₹ 4,36,65,400.00. A detailed examination for an amount of ₹ 3,53,719.46 on account of interest @ 18% ON ₹ 21,83,270.00 from 9.6.95 to 8.11.96 (517 days) was submitted by the claimants. 2. On the balance amount of ₹ 10,91,635.00 in shape of cash still remains outstanding with the respondents as on 8.11.96. The claimant submitted that the work was finally completed on 30.4.98, EOT was granted without levy of compensation and the maintenance period of 180 days expired on 30.10.98. However, an amount of ₹ 8,73,308.00 was released on 18.4.2002 by DSIDC and thus the claimant claimed interest @ 18% P.A. on ₹ 10,91,635.00 for the period 9.11.96 to 18.4.2002 (1986 days) which amounts to ₹ 10,69,144.33. 3. On the balance amount of ₹ 2,18,327.00 yet not released The claimant claimed interest @ 18% P.A. on ₹ 2,18,327.00 for period 19.4.2002 to 31.12.2003 (tentatively) the day when the invocation of the arbitration was made i.e for 622 days which amounts to ₹ 66, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment under the alleged head of defective work was due to the petitioners. This part of the Award is therefore sustained including for the reason that the petitioner is not entitled to any amount towards any alleged defective work, and which aspect is also discussed below while dealing with the relevant counter claim of the petitioner which has been dismissed by the Arbitrator. 13. Claim no.3 which has been objected to by the petitioner pertains to a claim for a sum of ₹ 2,97,200/- of the respondent on account of the respondent having illegally and wrongly recovering/withholding amounts for insurance policy, steel etc. Arbitrator has awarded this amount in favour of the respondent by holding that respondent had taken all the insurance covers even before entering into the contract and had duly supplied the insurance covers to the petitioner and that it was only thereafter that the contract was awarded to the respondent and hence petitioner now cannot claim that insurance policies were not taken by the respondent. The Arbitrator has also rightly held that there does not arise any issue of recovering of an amount towards insurance cover of a period of 14 months after actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.4. 15. The next issue which has been dealt with by the Arbitrator is Claim no.5 for the amount paid by the respondent for using consumables of diesel and lubricants for running of DG set which provided electricity to the petitioner. In this regard, Arbitrator notes that it is because the subject premises were handed over prematurely to the petitioner because the Chief Minister of Delhi wanted to inaugurate the same, therefore the electrification was done by means of generators and for which the respondent provided the diesel fuel and lubricants. The Arbitrator notes that the sub-station for electricity had only to be provided at the time of completion of the contract viz 30.4.1998 but since the polytechnic started running from 26.9.1997 and for which electricity was provided by means of generators and since it is not the case of the petitioner that it had provided the diesel fuel and lubricants for running of the DG set, in my opinion, the Arbitrator has rightly awarded the amount under this Claim no.5 of the respondent herein. 16. Claim no.6 is again for interest on that amount awarded under Claim no.5 and therefore once Claim no.5 is awarded, Arbitrator has rightly award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for spraying of chlorophyrifos emulsifiable concentrate 1% concentration for anti termite treatment and the rate quoted is ₹ 30/- per litre. The rates have been accepted by the respondents and I don't accept their stand that this is high rate as the contract once finalized is supreme. I find that the rates are per litre of sprayed quantity and the claimant is entitled to be paid for the exact quantity in litres of chlorophyrifos emulsifiable concentrate 1% concentration injected by the claimant and not according to quantity of chlorophyrifos 20% concentrate supplied by the claimant under agreement item No.12.75. I find both items are different and are separately payable and according to language and scope of the signed contract the claimants are entitled to be paid for the exact quantity in litres as sprayed by them of chlorophyrifos emulsifiable concentrate 1% concentration. The real quantity payable to claimant is calculated by multiplying 4788.86 (quantity paid by the respondents) with 20 which gives quantity of 95777.20 litres. The calculation submitted by the claimant are justified and I find that a total of 95777.20 litres of chlorophyrifos emulsifiable concentrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent was entitled to the payment. 19. I may at this stage note that the scope of challenge to an Award under Section 34 of the Act is limited and once the Arbitrator has given reasons which are one of the plausible and possible reasons for deciding the claim, this Court cannot even if it is of another view interfere with the Award. 20. Claim no.9 awarded by the Arbitrator is with respect to the claim of interest on Claim no.8 which is allowed and once Claim no.8 has been allowed, pre-reference interest on this amount has also been rightly awarded by the Arbitrator, again noting that interest has been granted only from 1.11.1998 ie after six months of the maintenance period under the contract which was completed on 30.4.1998. 21. Claim no.10 which was awarded by the Arbitrator was with respect to civil and electrical works done by the respondent under the contract and with respect to which payment was not made by the petitioner. With respect to the civil work, the Arbitrator has noted that the same was a claim for escalation during the extended period of contract and that the contractor/respondent had submitted cost indices which were exhibited as Ex.CH-2 and using this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warding of the claim by awarding the third claim under the joint head of civil and electrical works, and therefore, this third sub-claim under Claim no.10 of ₹ 1,05,402 is wrongly awarded by the Arbitrator because once escalation has already been allowed for civil and electrical works under sub-claims no.(i) and (ii) of Claim no.10, there cannot be a duplication by again granting escalation for civil and electrical works. This part of the Award of ₹ 1,05,402/- is therefore set aside and this amount will be reduced from the awarded amount. 23. Claim no.11 is once again a claim of interest on Claim no.10, and therefore this claim also has been rightly awarded by the Arbitrator but this will be reduced on account of the reduced amount being awarded under Claim no.10, again noting that the Arbitrator has awarded interest only from 1.11.1998 i.e six months after completion of work on 30.4.1998 and after the completion of six months maintenance/defect liability period. 24. Claims no. 12 and 13 are the claims of interest on 19 th R/A bill and 20th R/A bill. The Arbitrator under Claim no.12 has allowed an amount of ₹ 1,35,223/- being interest at 12% per annum from 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997 and upto the actual date of completion on 30.4.1998 i.e the period of roughly one year and which period of one year of delay was not on account of the respondent. Therefore, for both the bank guarantees for this period from 28.4.1997 till 30.4.1998 i.e ₹ 6,000/- per month/per lakh i.e a sum of ₹ 72,000/- would be payable by the petitioner to the respondent and not a sum of ₹ 1,22,808/- which has been awarded under this Claim no.16. Claim no.16 is therefore reduced from ₹ 1,22,808/- to ₹ 72,000/-. 26. The next claim under dispute is Claim no.20 and under which claim the Arbitrator has awarded to the respondent a sum of ₹ 2 lacs on account of loss suffered due to collapse of the roof of the M.P. Hall. The issue in this regard was that whether the roof collapsed on account of defective structural drawings provided by the petitioner or collapse of the roof was on account of lack of workmanship or negligence of the respondent's labourers. While discussing this claim, it is noted that the Arbitrator has not given a categorical finding that the roof collapsed on account of the giving by the petitioner of defective structural drawings. Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim no.10 as discussed above. Once the contractor is paid actual charges for the work done including escalation charges for the work done, there remains no other claim of the respondent/contractor for the same work allegedly on account of any further charges incurred and allowing of such a claim will amount to duplication of claim and the petitioner being put to double liability payment with respect to the same work which is done by the respondent and for which petitioner has made payment to the respondent for this work done alongwith the escalation charges. Accordingly, the Award with respect to Claim no.26 is wholly perverse and is accordingly set aside. 29. Next claim is Claim no.27 and which is the claim of interest on the claims which have been awarded by the Arbitrator and in this regard this portion of the Award will stand subject however to the fact that interest will not be payable with respect to those heads for which Award has been set aside as stated above. 30. That takes us to the counter claims which were raised by the petitioner against the respondent and these counter claims are as under:- COUNTER CLAIM No.1 The Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective works. This value of the defective works has not been proved by leading evidence and therefore this counter claim has rightly been rejected by the Arbitrator. One additional reason for rejecting the Counter Claim no.1 with respect to the defective works is also that admittedly the petitioner cleared the final bill of ₹ 4,78,710/- on 8.12.2003, and before the release of the final bill, petitioner would have ensured that whatever are its claims towards defective works would have been deducted from the payment to be made under the final bill. Therefore, once the final bill is cleared for an amount of ₹ 4,78,710/-, petitioner could not have contended that there were any further defects remaining and for which the counter claim was maintainable. Therefore, the Arbitrator has rightly rejected the Counter Claim no.1. 32. Counter Claim no.2 was for ₹ 25,00,000/- allegedly on account of costs, damages, loss of goodwill and harassment caused on account of collapse of the roof of the M.P. Hall. In this regard, Arbitrator has rejected the claim by holding that petitioner itself did not hold the respondent guilty and did not take any action against the respondent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification of damage to the DG set, Arbitrator has rightly rejected this claim of ₹ 2,00,000/-. 36. Counter Claim no.7 was a claim for defamation and a sum of ₹ 10,00,000/- was claimed under this head. It was alleged by the petitioner that petitioner is a reputed government undertaking and its image was tarnished by making defamatory statements in industrial circles. Arbitrator has rejected this claim by observing that internal correspondence between the petitioner and the respondent did not fall under the head of defamation. Also, the Arbitrator notes that approaching a competent authority for arbitration does not constitute defamatory action, and therefore, this claim was rejected. In my opinion, the Arbitrator has rightly rejected this counter claim not only for the reasons recorded by the Arbitrator, but also for an additional reason that defamation must be proved by means of leading of evidence of how the petitioner was brought down in estimation of the right thinking people of the society by the alleged defamatory statements, and petitioner admittedly led no evidence whatsoever in this regard. In the absence of evidence qua this counter claim for defamation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
