High Court of Punjab and HaryanaARB/144/2019allowed

Sps Infrabuild Pvt Ltd v. Ut Chd And ORS

2024-04-02Mr. Justice Vinod S. Bhardwaj13 pages

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"Clause 25 Except where otherwise provided in the contract, all questions and disputes relating ot the meaning of the specification, design, drawings and instructions here in before mentioned and as to quality of workmanship or material used on the work or as to any other contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof, shall be dealt with as mentioned hereinafter. (i) If the contractor considers any work demanded of him to be outside the requirement of the contract, or disputes any drawings, record or decision given in writing by the Engineer in Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision.

Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter.

If the Superintending Engineer fails or give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may within 15 days of the receipt of Superintendent Engineer's decision, appeal to Chief

Engineer, who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30 days of receipt of contractor's appeal. If the contractor is dissatisfied with the decision of the Chief Engineer, the contractor may within 30 days from the receipt of the Chief Engineer decision, appeal before the Dispute Redressal Committee (DRC) along with a list disputes with amounts claimed in respect of each such dispute and giving reference the rejection of his disputes by the Chief Engineer. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule 'F'.

If the Disputes Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Chief Engineer for appointment of Arbitrator on prescribed performa as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the Arbitrator.

It is a term of contract that each party invoking arbitration must exhaust the aforesaid mechanism of settlement of claims/disputes prior to invoking arbitration.

(ii) Except where the decision has become final, binding and conclusive in terms of sub para (i) above, disputes or differences shall be referred for adjudication through arbitration by a Sole Arbitrator appointed by the Chief Engineer CPWD, incharge of the work or in case there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be по Additional Director General, the Special Director General or the Director General, CPWD. If the Arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another Sole Arbitrator shall be appointed in the manner aforesald. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.

It is also a term of this contract that no person other than a person appointed by such Chief Engineer CPWD or Additional Director General or Special Director General or Director General, CPWD, as aforesaid, should act as Arbitrator and if for any reason that is not possible, the matter shall not be referred to Arbitration at all.

It is also a term of this contract that if the contractor does not make any demand for appointment of Arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer

in charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims.

The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.

It is also a term of this contract, that the Arbitration shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs.1,00,000/ the Arbitrator shall give reasons for the award.

It is also a term of the contract that if any fees are payable to the Arbitrator, these shall be paid equally by both the parties.

It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the Arbitrator in his sole discretion. The fees, if any, of the Arbitrator shall, if required to be paid before the award is made and published be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the Arbitrator) shall be in the discretion of the Arbitrator who may direct to any by whom and in what manner,

such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid."

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"i) The Respondents are liable to pay the Petitioner a sum of Rs.1,13,91,480/ on account of final bill, for civil work including the extra items and substituted items, submitted on 29.09.2017, along with an interest @18% per annum from the date when the said amount had fallen due, till the entire amount is received by the Petitioner.

ii) The Respondents are liable to pay the Petitioner a sum of Rs.10,00,000/ on account of final bill, for public health works, submitted on 04.08.2017, along with an interest @18% per annum from the date when the said amount had fallen due, till the entire amount is received by the Petitioner. (iii) The Respondents are liable to pay the Petitioner a sum of Rs.14,86,978/ on account of extra burden due to introduction of GST w.e.f. 01.07.2017.

iν) The Respondents are liable to pay the Petitioner a sum of Rs.32,60,930/ on account of refund of security deposit deducted from the running bills.

v) The Respondents are liable to pay the Petitioner a sum of Rs.91,88,908/ on account of damages, due to prolongation of contract for breaches committed by the Respondents.

vi) The Respondents are liable to pay the Petitioner a sum of Rs.44,716/ on account of expenditure incurred for extension of Bank Guarantees and Insurance Premium during the prolonged period for reasons, attributable to the Respondents. vii) The Respondents are liable to pay the Petitioner a sum of Rs.43,29,000/ on account of escalation other than cement and reinforcement steel during the prolonged period, for reasons, attributable to the Respondents.

viii) The Respondents are liable to pay the Petitioner a sum of Rs.90,000/ on account of expenditure incurred on watch and ward of the buildings, for the period 01.08.2018 to 31.10.2018, when the Respondents falled to take over the buildings, inspite of their completion.

ix) The Respondents are liable to pay the Petitioner interest on all the claims, including claims of damages, till date of payment.

x) The Respondents are llable to pay the Petitioner the cost of Arbitration, as per actual.

xi) The Respondents are also liable to compensate the Petitioner for the harassment and humiliation caused by the latter on the basis of the acts of omission and commission, committed by the former."

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Whether speaking/reasoned : Yes/No Whether reportable : Yes/No