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TMI Blog2019 (8) TMI 1906X X X X Extracts X X X X X X X X Extracts X X X X ..... ent at points A, B, C and D. However, he denies the sentence written above point 'D' which reads - I hereby withdraw my condition for monthly payment and interest of 24% on a/c of non-payment . Thus, the Contractor's argument that the writing above Point D is not his, would not be sufficient. Even alleging that there is forgery is not sufficient. The existence of contemporaneous documents viz., negotiation letter, note sheet duly signed by the competent authority, none of which are disputed, shows that the condition was indeed withdrawn. The signatures of the officers of the Corporation on these documents is not disputed by either side - The note sheet clearly records that the Contractor had initially put the condition which was thereafter withdrawn. When parties play a fraud on the Court or deliberately suppress relevant facts and documents and further mislead the court, the argument of functus officio would not be applicable. The Court has the inherent power to recall/modify its order/judgment. For such apparent omissions in placing the true facts before the court and the arbitral tribunal, responsibility ought to be affixed on the errant officers. It is, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntractor') on 28th August, 2004. Disputes had arisen in respect of the said project. Various claims were raised relating to escalation under Clause 10CC, reimbursement of amount spent in keeping watch/ward, short payment, interest and costs. 3. This Court had upheld the award of the Ld. Arbitrator, in the judgment rendered on 12th December 2018 (hereinafter, 'judgment'). One of the first facts noted by the Court, as captured in paragraphs 9 to 11 of the judgment, was in respect of a condition imposed by the Contractor, which reads as under: 9. This Court has heard the submissions of the parties and has also gone through the written submissions filed by them. The first and the foremost fact that needs to be noted is that the contractor at the time when he submitted his bid in response to the tender, had done so on the following condition: Condition: 1) Our Rates are hold good for Monthly Payment if the monthly Payment not be done then 24% interest will be Charged. 10. The fact that the above condition was written in hand by the contractor at the time of submitting the bid itself shows that: i) Timely monthly payments were essential for the contractor, especially owing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he objection petition remained pending before this Court, the interest is modified to simple interest on awarded amount @12% p.a. till today. 19. If the entire payment is made within 8 weeks, no further interest would be charged and if the payment is not made within 8 weeks, then simple interest @ 18% p.a. would be liable to be paid on the entire amount. 5. An application has come to be moved by the Corporation for modification of the judgment on the ground that the condition seeking payment of interest at 24% p.a. if the monthly payment is not made, which was purportedly imposed by the Contractor was, in fact, withdrawn by the Contractor subsequently and the Court has been misled into believing that the said condition was in operation. The stand in the application is that after receipt of the judgment, when the file was being processed and legal opinion was sought, ld. counsel for the Corporation expressed surprise on the fact that the Corporation had accepted a conditional tender, which was completely unusual. 6. The said opinion was sent to the Chief Law Officer of the North Delhi Municipal Corporation and the files relating to the present contract were traced. Upon tracing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. I have been dealing with the MCD since 1980. I am a regular contractor with the MCD and regularly visit their office. I had two legal disputes with the MCD and one I am yet to file. I get contracts worth approximately Rs. 8 to 15 crores per annum from the MCD. I deal with almost all the zones of the MCD. The dispute in the present case relates to the construction of the Narela Zonal Office of the MCD. The value of the contract was approximately Rs. 4 crores. The matter was argued by my counsels, namely, Mr. Aditya Chibber and Mr. Ankur Chibber on 12th December, 2018. I had instructed my counsels about all the relevant facts in the matter. (The witness has been shown the affidavit in support of his reply and he confirms that the signatures on the affidavit are his.) (The witness has been shown original page no. 811 of the MCD record produced by Mr. Goel. He states that the signatures on this letter do not belong to him.) The name of my firm is M/s. Nathu Ram Gupta Co. (He admits that the original letter head shown to him at page no. 811 of the MCD record is of his firm. The said letter head is taken on record and is exhibited as Exhibit R-1.) The Executive Engineer designated for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition which he had imposed. The fact that the condition was withdrawn is clear from the negotiation letter placed on record as also the permission, which was given for processing of the award of the contract, which has been approved right till the Mayor of Delhi on 30th July, 2004. 11. Mr. Darpan Wadhwa, ld. Senior counsel for the Respondents, on the other hand submits that the Contractor had not been relying on the condition which he had imposed. The Contractor had merely prayed for 18% interest even in the arbitral proceedings. It was the Corporation, which had produced the tender form containing the condition, which was then relied upon by the Ld. Arbitrator. Thus, the Contractor had not misled the Ld. Arbitrator. Further, he relied upon the various letters written by the Contractor seeking escalation which clearly showed that the Contractor was merely asking for 18% interest even on the escalation amount. He submits that the imposition of the said condition was not central to the case of the Contractor and thus, this Court ought not to be swayed by the fact that the condition was withdrawn. It is further submitted that the negotiation letter (Exhibit R-3) as also the letter on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper negotiation held with the Contractor and at that time, the Contractor gave three offers, each of which is signed by him and the condition has been specifically withdrawn. The said document is relevant and is extracted herein below: On the basis of this document, permission to award the tender was processed and the same reads as under: Subject: - Permission to process the tender case for construction of Zonal Office Building in Narela Zone at Narela (remaining work) in anticipation approval of Corporation through Works Committee. The worthy Commissioner vide his letter No. PSC/CO-272/03 dated 10.10.2003 has desired to resume the construction of the office building for which the funds shall be provided by C.A.-cum- P.A. either from MCD budget or by taking short term loans as and when required. Accordingly, estimate amounting to Rs. 4,60,60,481/- for the above said work (remaining work) was prepared and tenders amounting to Rs. 3,66,67,376/- were called after taking permission from the Competent authority in anticipation approval of Corporation vide NIT No. EE(Pr.)R/TC/03-04/29 dated 30.1.2004 due on 10.3.2004. The lowest tenderer M/s. Nathu Ram Gupta Co. has quoted their rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original letter head of the Contractor i.e. Exhibit R-1, the negotiation letter i.e. Exhibit R-3 and the note to be put up by the department which was approved right till the Mayor, establish the withdrawal of the condition. Clearly the Contractor was in the wrong. 19. Another shocking feature of this case is that the tender form containing the condition was produced by the Corporation before the Ld. Arbitrator. At that stage, the Contractor did not inform the Ld. Arbitrator of the withdrawal of the condition but the Corporation employees also failed to produce these records relating to the withdrawal of the condition. The said documents were not easy for anyone to miss as is evident from the original file produced before the Court. The staff of the Corporation are also to blame in this regard. 20. The above events throw light on a very disturbing feature of proceedings of this nature, i.e. selective documents being relied upon in the proceedings. The fact that the withdrawal of the condition went unnoticed in all these years till the final judgment was passed by this Court clearly shows that there is no accountability whatsoever within these departments. The contract dates back t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is to administer justice. Judgment or order procured by playing fraud upon the Court cannot be rammed down the throat of the aggrieved party. Justice and fraud are aliens to each other. Fraud pollutes the sanctity and solemnity of the judicial proceedings. This is why Courts have inherent powers to recall or set aside such a judgment or the order. 22. This matter calls for an enquiry into the working of the officials of the Corporation as also if there was any malpractice in the deliberate suppression of relevant and material documents. Responsibility also needs to be assigned upon the officials, who were involved in the pairvi of this case, both before the Ld. Arbitrator and before this Court. The above facts could also be a reflection of serious misdemeanours in imposition and acceptance of tender conditions and withdrawal thereof. It is noticed that in several cases conditions/undertakings are submitted by Contractors but the Contractors are permitted to resile from the same later on. A proper policy needs to be put in place to ensure that the files of such contracts are properly maintained and are made available in case of disputes, to be placed before the fora which adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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