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TMI Blog2019 (5) TMI 1915X X X X Extracts X X X X X X X X Extracts X X X X ..... ural finishing, water supply, sanitary installation and drainage works from Chainage 2580.000 to 4121.170 on Dwarka- Najafgarh Metro Corridor of Phase-III of Delhi MRTS ("the main contract works"). 2.2 The respondent i.e. IPEX Infrastructure Private Limited (hereafter referred to as 'Ipex') was appointed as a sub-contractor for executing a part of the main contract works awarded by DMRC in favour of HCC (in short "sub-contract works"). For this purpose, Ipex was issued a Letter of Intent dated 19.12.2014 (in short 'LOI'). The LOI, inter alia, required Ipex to execute work comprising 3% of the value of the main contract works awarded to HCC by DMRC. 2.3 The total value of the sub-contract works was Rs. 1025.96 lakhs. The sub-contract works required the construction of 800 mm thick Diaphragm Wall (D-wall) at Najafgarh Station. Towards this end, Ipex was required to provide the necessary service and labour input and also deploy the requisite equipment required to construct the D-wall of specified thickness. Importantly, the sub-contract works had a timeframe fixed. The time for execution of the sub-contract works commenced from 24.12.2014 and was to expire on 30.11.2015. 2.4 The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts come to fore on a perusal of letters dated 23.06.2015, 06.07.2015, 14.08.2015, 17.10.2015, 09.11.2015, 09.01.2016 and 14.01.2016. 2.9 It appears that despite HCC failing to live up to its representation, it wrote to Ipex on 10.02.2016 to extend the validity period of the PBG furnished by it. This request was made by HCC with a caveat that if the validity period of the PBG was not extended, it would seek its encashment. 3. Ipex, it appears, given the aforesaid difficulties and losses faced by it, vide letter dated 15.02.2016 sought waiver of the request made for the extension of the PBG. 3.1 Since HCC did not comply, Ipex moved this Court by way of a Section 9 petition. This petition was numbered as OMP(I)(COMM) 50/2016. The petition was, however, withdrawn by Ipex in view of HCC's letters dated 14.01.2016 and 18.02.2016. The net impact of these letters was that HCC had given up its stand conveyed in its letter of 10.02.2016. HCC, in fact, agreed that Ipex could furnish a PBG for a reduced value of Rs. 25 lakhs and extend its validity period for another six months. 3.2 Since Ipex was incurring costs, it wrote to HCC on 23.02.2016 for payment of its outstanding dues. This led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved this court once again by way of Section 9 petition. This petition was numbered as OMP(I)(COMM) 71/2017. The petition was allowed on 28.02.2017. HCC was injuncted from invoking and/or encashing the PBG subject to Ipex keeping it alive. The main dispute was referred to Delhi International Arbitration Centre (DIAC) for the appointment of an arbitrator. Consequently, DIAC appointed an arbitrator to adjudicate the disputes obtaining between parties. 4.1 The first meeting of the arbitrator was held on 19.02.2018. On that date, HCC was given time to file its reply and counterclaim on or before 22.03.2018. Likewise, Ipex was given time to file a rejoinder, albeit, by 25.04.2018. 4.2 Thereafter, the arbitrator convened a meeting on 27.04.2018. On that date, further time was sought on behalf of HCC to file its reply/counterclaim. This prayer of HCC was rejected. The matter was adjourned to 23.07.2018. On 23.07.2018, affidavit of evidence was filed by Ipex. However, there was no appearance on behalf of HCC. The matter was posted for further proceedings on 31.07.2018. On that date, adjournment was sought by the lawyer for HCC on the ground that the arbitrator's order dated 27.04.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts towards running bills are concerned, a sum of Rs. 67,30,994/- was awarded. As regards money retained by HCC from running bills, a sum of Rs. 22,69,162/- was awarded. HCC has also been directed to release and handover the PGB of the value of Rs. 25 lakhs. As regards extension charges, the full amount, as claimed, has been awarded. In other words, HCC has been directed to pay a sum of Rs. 57,481/-. Qua claim for compensation in respect of idling cost, the learned arbitrator has awarded a sum of Rs. 6,03,94,423/. Besides this, pre-litigation interest on amounts awarded under Claim Nos.1, 2 and 3 has been granted. The total amount quantified is Rs. 11,31,407/-. Pendente lite interest at the rate of 12% per annum for the period spanning between 7.07.2017 and 8.01.2019 has been awarded. Interest in this behalf has been awarded on a sum of Rs. 7,19,52,060/-. The learned arbitrator has quantified interest as Rs. 1,29,50,370/-. In addition, thereto, post-award interest at the rate of 12% per annum has been awarded on an amount equivalent to Rs. 8,60,33,837/-/ Towards cost, Ipex has been awarded a sum of Rs. 8 lakhs. 5. Thus, as would be seen, there is a scaling down of some claims while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimation whatsoever of this filing was given to the learned arbitrator. 7.4 It was sought to be argued by Mr. Krishnan that since it was an institutional arbitration, filing with the DIAC would suffice. In any other case, one may have accepted this submission, however, in view of the past conduct of HCC of not filing its statement of defence despite opportunity being given and given the fact that specific direction was issued that the opposite party i.e. Ipex, should be served with a copy of its written submissions, this plea cannot be accepted. Therefore, the argument sought to be raised that failure to consider the written submissions filed on behalf of HCC amounted to a denial of opportunity to defend its claim, in the facts and circumstances of this case, cannot be accepted. 7.5 I have carefully examined the award and the accompanying record. The learned arbitrator has scrupulously gone through each and every claim and only after giving due consideration to the material on record, he has reached his conclusion vis-à-vis the claims lodged by Ipex. It is this wholesome approach of the learned arbitrator that despite the absence of HCC's written submissions, the claim l ..... 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