Delhi District Court
Union Of India vs M/S Bansal Construction Co on 19 January, 2021
In the Court of Shri Sanjiv Jain,
District Judge (Commercial Court)03, Patiala House Courts
New Delhi
OMP Number. 87/2019
Union of India
Through
Sh. R. K. Verma,
Sr. DENWorks, Northern Railway,
DRM, Office, State Entry Road,
Connaught Place, New Delhi
... Petitioner/objector
versus
M/s Bansal Construction Co.
Through Smt. Manjula Rani,
W/o Sh. Sat Prakash Gupta,
Sudarshan Apartment,
45, I. P. Extension, Patparganj,
Delhi. ... Respondent/claimant
Date of institution : 24.09.2018 Date of reserving judgment : 14.12.2020 Date of decision : 19.01.2021 JUDGME NT
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (as amended upto date) hereinafter called the 'Act' challenges the award dated 29.01.2019 passed by the Arbitrator Sh. Vinod Kumar.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.1 of 54 Brief facts:
2. Briefly the facts as stated in the petition are that the petitioner had invited tender for the work "Development of Mandatory facilities on stabling lines for terminal examination at New Delhi Depot under ADEN/New Delhi". The respondent participated in the tender and offered the bid, which was accepted and the work was awarded to the respondent vide letter dated 23.05.2007 for a sum of Rs. 2,14,26,745/. Period for the completion of the work was 9 months i.e. upto 22.02.2008. As per the terms of the contract, the respondent was to submit performance guarantee for a sum of Rs. 10,71,337/ within 15 days but the respondent submitted on 26.06.2008 after about 400 days after various requests and reminders. During the contract, three addendums / corrigendums were issued on 10.10.2018, 20.11.2008 & 17.06.2010 respectively.
The agreement was signed on 03.07.2008. GCC 1999 and Special Condition relating to Site Data and Special Tender Conditions & Instructions were applicable for the execution of the work. On 21.11.2007, the respondent wrote to the petitioner that the work of a particular line can be started only after getting the line blocks but despite lapse of six months, no block was got sanctioned. In the meanwhile, rates of cement and other building materials went upto 25%. Besides, respondent was bearing an expenditure of Rs. 30,000/ per month on the staff & machinery. It was also losing 10% of the working capital of Rs. 30,00,000/ per month. It then requested the petitioner for increasing the completion period mentioning interalia that 9 months period was quite insufficient OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.2 of 54 keeping in view the scope of the work seeming that the time period was knowingly kept as 9 months to avoid PVC benefits. Request was made to accord the extension with PVC or in alternative to close the contract on administrative grounds. The respondent sent number of similar letters to the petitioner, some of which were replied declining to allow PVC but it accepted the increase in the rates of steel, cement and other building materials. By 05.02.2009, the work of stabling lines 4 & 5 could be completed. The petitioner vide letter dated 29.06.2009, acknowledged the difficulty being faced by the respondent on account of frequent changes in priorities for the execution of work on stabling lines nos. 8, 9, 17, 18 & 19 and recommended for the closure of contract but even thereafter, it asked the respondent to depute men & machinery to complete the work lest to face penal action. The respondent submitted the 'no claim certificate' on 09.04.2010 and thereafter, the petitioner vide letter dated 01.06.2010 sanctioned the closure of contract. The cost of the contract after closing became Rs. 1,22,06,538/. On 09.06.2010, final bill was prepared and the respondent signed the bill with an endorsement no claim for measurement accepted. The final bill amount was paid to the respondent on 28.06.2010. The respondent, being dissatisfied with the nonpayment of PVC and other extra expenses incurred by it, invoked the arbitration clause of the agreement vide letter dated 02.11.2011, which remained unreplied. The respondent sent reminders on 22.03.2013, 29.11.2014, 16.03.2015, 03.06.2015, 19.04.2016 & 03.08.2016. The petitioner then vide its letter dated 19.06.2015 declined the arbitration on the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.3 of 54 ground that the contractor has given 'no claim certificate' to the petitioner. The respondent vide letter dated 13.07.2015 made a representation that the 'no claim certificate' was regarding the final measurements and not regarding the PVC claim and that the tender was for a sum of Rs. 2.14 crores i.e. more than Rs. 1.0 crore and the completion period would have been more than one year but the petitioner declined the arbitration vide letter dated 21.08.2017 mentioning that there is no separate condition in the contract in this regard. On 13.10.2017, the respondent filed the petition no. 661/2017 under Section 11 of the Act before the High Court of Delhi for appointment of an Arbitrator. The petitioner opposed the petition on the ground that it was highly belated and in view of 'no claim certificate', respondent was not entitled to seek appointment of an Arbitrator. The High Court, vide its order dated 08.12.2017 appointed the Arbitrator for adjudication of disputes between the parties, in relation to the agreement. The respondent filed its statement of claims on 13.10.2017 to which, the petitioner filed its statement of defence. The respondent also filed the rejoinder.
Claims:
3. In the statement of claims, the respondent made the six claims i.e. Claim No. 1: For keeping staff and machinery at the site in the extended period - Rs. 10,75,000/.
Claim No. 2: Against PVC - Rs. 20,97,418/.
Claim No. 3: For loss of profit @ 10% on the balance work - Rs. 9,22,020/.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.4 of 54 Claim No. 4: Interest @ 12% per annum.
Claim No. 5: Mobilization and demobilization - Rs. 4,95,300/ Claim No. 6: Arbitration cost - Rs. 3,00,000/.
Issues:
4. Following issues were framed vide dated 25.10.2018 by the Arbitrator:
1. Whether the Claimant (respondent herein) is entitled for the reliefs as claimed in the Claim Statement?
2. If issue no. 1 is proved, whether the claimant is entitled for interest, if so, then at what rate and for which period?
3. Whether the claims of the Claimant are barred by limitation?
4. Whether the claimant is estopped by way of its own acts and conducts, as alleged?
Evidence:
5. The claimant / respondent examined Sh. Sat Prakash Gupta as CW1. He tendered his affidavit in evidence and relied on various documents. The respondent examined Sh. Narender Kumar, Senior Section Officer (works) as RW1. He also tendered his affidavit in evidence and relied on the documents.
Findings / award of the Arbitrator:
6. Qua Issue no. 3, the Arbitrator did not find merits in the contention of the petitioner that the claim is barred by limitation in OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.5 of 54 view of clause 64 (1) (i) of GCC 1999. He referred the case of Kartar Singh & Company Vs. Punjab State Electricity Board, (2007) 147 PLR 589, Pandit Construction Company Vs. DDA & Ors 2007 (3) Arb L.R. 205 (Delhi) and distinguished the case of Steel Authority of India Limited Vs. J. C. Bhudharaja Government & Mining Contractor (1999) 8 SCC 122, Arvind Kumar Jain Vs. UOI, Arb Pet No. 77/2017 decided on 11.04.2017, State of Goa Vs. Prveen Enterprises, (2012) 12 SCC 581, Pandit Munshi Ram & Associates Vs. DDA & Anr, 88 (2000) DLT 180 relied upon by the petitioner and held that if the petitioner after receipt of the letter of invocation, sits over the same and it neither rejects the application nor appoints the Arbitrator and when after the lapse of considerable time, opposite party approaches the High Court under Section 11 of the Act and the petitioner opposes the prayer alleging expiry of limitation, accepting the objection of limitation would nullify the scheme of the Act itself. It was held that the claims are not at all barred by limitation.
7. Qua issue no. 4, the Arbitrator held that the contract cannot be said to be foreclosed on volunteered request of the respondent.
Letter of the respondent dated 11.02.2010 would reveal that foreclosure was sought due to various faults on the part of the petitioner, which it had accepted. It was the petitioner, who had expressed its inability to arrange the blocks and proposed to close the work on administrative grounds. It had also admitted the increase in the rates of the various items and thus recommended the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.6 of 54 competent authority to close the work. The Arbitrator also referred the 'no objection certificate' dated 19.06.2015 and observed that it was only on the dotted lines given by the petitioner to the respondent to sign even not mentioning number, date or year of the order. Getting signed such like 'NOC' on dotted lines prior to release of dues is not legal and valid. The respondent had no alternative but to sign it under the forced circumstances for getting its withheld dues including the payment of the final bills and release of performance bank guarantee. The Arbitrator also referred the testimony of RW1 and clause 23.2 of the Special Tender Conditions and Instructions to tender and stated that RW1 has admitted that unless the contractor submits 'NOC' to the department, payment of final bill is not processed. Thus, it cannot be said that such like 'no claim certificate' is legal, valid or binding on the respondent. It was noted that after the payment and release of performance bank guarantee, on 02.11.2011 itself, the respondent invoked the arbitration clause. A reference of the case Ambika Construction Company Vs. Union of India (2006) 4 Arb LR 288 (SC) was made, wherein, it was held that clause 42 (2) of GCC does not absolute bar the contractor firm raising genuine claims even after submission of NOC. It was held that the respondent is not estopped by way of its any act or conduct or due to the said NOC.
8. Qua issue no. 1, he observed that faults in delay are only on the part of the petitioner and not on the part of the respondent. All the three extensions were granted without penalty under clause 17A;
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.7 of 54 impliedly admitting no fault on the part of the respondent. He also considered the delay in submitting the performance bank guarantee and the claim of the respondent qua PVC benefits and held that when the petitioner was at fault on material aspects, how it could blame the respondent for some delay in submission of performance bank guarantee. It was observed that the work was not of only one or two stabling lines but of number of lines. Even for getting the sanctions for the blocks for lines 4 & 5, the petitioner took about 11 months, so how in these circumstances, it can be said that period of 9 months for the whole work was reasonable and justifiable, therefore, denial of PVC benefit is totally illegal, invalid and not binding upon the respondent. The Arbitrator also considered clause 17A (iii) of GCC and clause 33 referred by the petitioner and did not find merit in his contention. He observed that the petitioner cannot be allowed benefits of its own wrong. When there is breach of contract on the part of the petitioner, the respondent is certainly entitled for damages. The contractual clauses, which disentitle the aggrieved party to the benefit of Section 55 and 73 of the Indian Contract Act would be void being violative of Section 23 of the Contract Act, which was so held in the case of Simplex Concrete Piles (India) Ltd Vs. Union of India (2010) ILR 2 Delhi 699 and G. Ramachandra Reddy Vs. Union Of India, 2009 (6) SCC 414. It was held that the respondent is entitled to PVC benefits and damages / expenses incurred for keeping men and machinery etc at site during the extended period.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.8 of 54
9. The Arbitrator allowed the claims of the respondent under different claims by giving detailed reasons i.e. claim No. 1 for Rs. 10,75,000/, claim no. 2 for Rs. 20,97,418/, claim No. 3 for Rs. 9,22,022/ referring the case of DDA Vs. Polo Singh & Co. 101 (2002) DLT 401 (DB) that 10% of the contract value is fair and reasonable basis to work out the amount of loss of profit.
Qua claim no. 4 interest @ 8% & 12% per annum referring Section 31 (7) of the Act, clause 16 (1) of GCC, Clause 64.3 & 64.5, it was held that clause 16 (1) of GCC relates to earnest money and security deposit, but this case does not pertain to the interest on the earnest money or on the security deposit. Cases of Roveechee & Co. Vs. Union of India, AIR 2018 SC 3109 and Union of India Vs. M/s Pradeep Vinod Construction Co. Manu/SCOR/30509/2017 were referred, where, it was held that the claimant becomes entitled to interest not as a compensation of any damages done but for being kept out of money due to him, in case of unascertained damages, question of interest would arise on the ascertainment of damages in due course and such damages could interest pendentlite. It was held that tribunal is competent to award reasonable pendentlite as well as future interest.
The Arbitrator declined the claim no. 5 holding that as per clause 30.3 of Special Tender Conditions, the claim is not permissible as the contractor is supposed to arrange men and machinery at the site of work. In respect of claim no. 6, the Arbitrator awarded the cost of the proceedings @ Rs. 1,59,281/ OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.9 of 54 observing that the respondent has paid / deposited a sum of Rs. 1,59,281/.
Objections of the petitioner:
10. The petitioner challenged the impugned award alleging that the delay in the execution of contract was solely attributable to the respondent. It is stated that the agreement was signed by the respondent with open eyes. The terms & conditions mentioned in the agreement were binding on the parties. As per Section 28 (3) of the Act, the Arbitrator was to decide the issues in accordance with the terms of the contract, as held in the cases of DDA Vs. R. S. Sharma & Co, VII (2008) SLT 306, New India Civil Erectors Pvt Ltd Vs. ONGC, (1997) 11 SCC 75, FCI Vs. Chandu Construction & Anr, (2007) 4 SCC 697, State of Rajasthan VS. Nav Bharat Construction Co. (2006) 1 SCC 86, M/s Sarvesh Chopra Builders Pvt Ltd Vs. UOI, AA No. 514/06, Vandant Gupta & Anr Vs. Kuwait Airways Ltd & Ors, 2016 (I) RAJ 433 (DEL), Steel Authority of India Ltd Vs. J. C. Buddhi Raja, Government & Mining Contractor, (1999) VII SCC 122 and he cannot allow a claim which is contrary to the contract. It is stated that in the instant case, the respondent had given 'no claim certificate' and thereafter, the final bill was paid and thus, in terms of clause 23.2, it had admitted that no money is due to it in connection with the contract, so in terms of clause 42 of GCC 1999, after giving NOC, the Arbitration clause does not survive. Therefore, the respondent was not within its right to challenge the clauses of contract or any other document signed by it. It itself had requested OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.10 of 54 for the foreclosure of contract and given NOC and thereafter the contract was foreclosed on administrative grounds. It had furnished the NOC in respect of measurements and initiation of 3 rd and final bill and on its request, the bank guarantee was released and completion certificate was issued meaning thereby that there was no dispute between the parties upto 06.07.2011. During the pendency of contract, it did not submit the monthly statement of claims as required under 43 (1) of GCC 1999, meaning thereby that nothing was due against the petitioner in respect of the contract till the passing of the final bill, which fact was not at all considered by the Arbitrator. It is stated that the Arbitrator ought to have taken into account the terms of the contract, which were not considered by him while passing the impugned award hence the award is patently illegal and against the public policy.
11. It is stated that as per Section 43 of the Act, Limitation Act 1963 would apply to arbitration. Under Article 113 of Limitation Act, any suit for which no period of limitation is provided in the schedule, it will be three years, when the right to sue accrues. As per Section 3 of the Limitation Act, every suit preferred after the prescribed period shall be dismissed. As per Section 9 of the Act, once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. It is stated that the contract was foreclosed on 01.06.2010, NOC was given on 02.06.2010, final bill was accepted on 09.06.2010, the arbitration clause was invoked on 02.11.2011, which was declined on OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.11 of 54 19.06.2015. It is stated that as per clause 64 of GCC, in case of any dispute, the party could invoke the arbitration clause, so the respondent could have approached the High Court for appointment of the Arbitrator by filing the petition under Section 11 after the expiry of 30 days but its slept over the issue and approached the High Court on 13.10.2017 i.e. after a gap of more than five years and eleven months, thus, barred by limitation. Case of Khatri Hotel Vs. UOI, 182 (2011) DLT 597 SC, Satender Kumar Vs. MCD & Anr, 168 (2010) DLT 15, Sukhbiri Devi & Ors Vs. UOI, 162 (2009) DLT 720 are referred to submit that the limitation starts running on the date when right to sue first accrues and not on subsequent dates, even if cause of action has arisen on subsequent occasions as well. It is stated that the Arbitrator did not appreciate the facts and laws correctly and decided the issue of limitation in favour of the respondent. Case of ONGC Vs. Saw Pipes Ltd, AIR 2003 SC 2629 is referred.
12. It is stated that the respondent itself had requested for the foreclosure of contract vide letter dated 11.02.2010 & 16.10.2010 and given NOC on 09.04.2010 and thereafter the contract was foreclosed on 01.06.2010 on administrative ground for which the respondent had furnished NOC on 02.06.2010 in respect of the measurements and NOC on 17.06.2010 in respect of initiation of final bill, which was sanctioned and paid and the bank guarantee was released meaning thereby that there was no dispute between the parties upto 06.07.2011. The contractor even did not submit the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.12 of 54 monthly statement of claim as required under clause 43 (1) of GCC 1999 meaning thereby that nothing was due against the petitioner but the Arbitrator did not consider this fact. Though, as per section 4 of the Act, it was waiver on the part of the respondent. It is stated that as per clause 64 (1) (iv) of GCC, if the contractor does not prefer its specific and final claim in writing within 90 days of receiving intimation that the final bill is ready for payment, it would amount to waiving of claim and release of department from its liability under the contract in respect of the claim. In the instant case, the final bill was paid on 18.06.2010 but the arbitration clause was invoked on 02.11.2011 i.e. after the expiry of 90 days, which fact was not considered by the Arbitrator.
13. It is stated that the respondent had submitted its bid offer after understating the terms & conditions of the contract upon its own free will and the time was the essence of the contract but despite various requests and reminders, it did not complete the work within the stipulated time and sought extensions, which were allowed / granted under clause 17B of GCC 1999 and the delay was attributable on the contractor but the same was not considered by the Arbitrator. It is stated that the Arbitrator ignored the terms & conditions of the contract and Section 31A of the Act, though, clause 16 (3) and 64 (5) of GCC bar award of interest by the Arbitrator. Reference is made of the case Chitranjan Maity Vs. UOI, 2017 (6) RAJ 1 SC. It is stated that in the case of Jai Prakash Associates Ltd VS. Tehri Hydro Development Corporation India Ltd, 2019 (2) RAJ 1 SC, it OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.13 of 54 was held that if the contract bars, interest cannot be awarded but this aspect was not considered.
14. It is stated that the award against claim no. 2 on account of PVC benefits is against the agreed terms & conditions of the contract. As per the contract, the work was to be completed within 9 months and there was no PVC clause. PVC clause is available in the contract, where the stipulated period of completion is more than one year. It is stated that the entire delay was attributable to the respondent not due to the petitioner. Further, all the three extensions were granted under clause 17B of GCC 1999, which were never opposed during the pendency of the contract till the closure of the contract, so the respondent is stopped by estoppel, which fact was not considered by the Arbitrator.
15. It is stated that the Arbitrator overlooked the defence of the petitioner in its statement of defence that the Arbitrator has no jurisdiction to try and decide the issue pertaining to the staff and machinery which remained idle on account of the contract extended for 22 months over the initial period of 9 months falling in the category of 'Excepted Matter'. It is stated that as per clause 64 of GCC 1999, in case of dispute, it would be referred to arbitration except the 'Excepted Matter', defined in clause 63 of GCC 1999, which interalia provides that the claims which fall under Special Tender Conditions cannot be adjudicated by the Arbitrator. Reference is made of the case Harsha Construction Vs. UIO, AIR OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.14 of 54 2015 SC 270, G. M. Northern Railway Vs. Sarvesh Chopra (2002) 4 SCC 45. It is stated that as per clause 33 of the Special Tender Conditions, no claim for idle labour / machinery etc, on any account will be entertained. Similarly, no claim shall be entertained for business loss or any other loss. It is stated that in view of the agreed terms and conditions and that the claims fall under the category of 'excepted matters', the Arbitrator did not have jurisdiction to decide the issue as per Section 16 of the Act but in this case, the Arbitrator ignored the facts and law and his award is patently illegal. Further as per clause 51A of GCC 1999, the respondent was supposed to produce the bills / vouchers etc for the relevant period to show that the alleged amount was actually debited from the account of the respondent and credited to the venders / petty contractors but no such evidence was produced.
16. It is stated that the amount of Rs. 9,22,020/ on account of loss of profit on the balance was awarded without considering the facts and law. The respondent itself had requested for foreclosure of the contract and given NOC and thus is stopped by rule of estoppel from claiming the said amount.
17. It is stated that the Arbitrator did not consider the terms & conditions of clause 64.6 of GCC by awarding the cost of Arbitrator, as per which, the cost of the arbitration shall be borne by the respective parties.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.15 of 54 Request for condonation of delay:
18. An application was moved under 34 (3) of the Act for condonation of delay in filing the petition under Section 34 of the Act. It is stated that the petition could not be filed upto 28.04.2019, since, the case file inadvertently got tagged with another bundle of decided case file and same could be found only on 07.05.2019. Immediately, thereafter, the objection petition was prepared and sent to the department for getting it signed which resulted in delay of 18 days in filing the petition. It is stated that it is a bonafide mistake of the clerk of the counsel and the party should not be made to suffer for this bonafide mistake. It is stated that non filing of the objection petition within the stipulated time is neither intentional nor deliberate but due to bonafide mistake. Further, huge public money is involved in this case. Reference of the case State of Haryana Vs. Chander Mani, AIR 1996 SC 1623 and Executive Officer, Antiyur Town Panchayat Vs. G. Arumugam, MANU/SC/0050/15 is made to contend that the court must always take justice oriented approach while considering the application for condonation of delay. It is axiomatic that decisions are taken by officers / agencies proverbially at slow pace. If such appeals brought by the State are lost for such default, no person is individually affected, but what in the ultimate analysis suffers, is the public interest.
Arguments & contentions:
19. I have heard Ld. Counsel Sh. Vinod Kumar Rai for the petitioner and Sh. S. W. Haider, Ld. Counsel for the respondent and OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.16 of 54 carefully perused the record.
20. Ld. Counsel for the petitioner reiterated what has been stated in the petition and submitted that the impugned award is against the substantive law and the public policy, which is liable to be set aside. The claims filed by the respondent were barred by limitation, which could not be referred in view of the case State of Goa Vs. Parveen Enterprises (supra).
21. Ld. Counsel for the respondent per contra submitted that the impugned award does not suffer from any infirmity. It was passed by a Retd. Judicial Officer, who has dealt in detail the limitation issue and the 'no claim certificate' given by the respondent and thereafter, passed the award giving detailed reasons.
Findings / Adjudication:
22. I have considered the submissions as above and gone through the impugned award and the relevant documents as well as the case laws (supra).
23. Section 34 (3) of the Act provides a limitation period of three months for filing objections against an arbitral award. Proviso to Section 34 (3) of the Act provides an extended period of 30 days for filing the application and the court has the discretion to condone the delay, provided sufficient cause is shown by the party which prevented it from approaching the court in the limitation period of OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.17 of 54 three months. In the case of DDA v/s Durga Construction, (2013) SCC Online Del 4451, it was held that although the courts have the jurisdiction to condone the delay, the approach in exercising such jurisdiction cannot be liberal and the conduct of the applicant will have to be tested on the anvil of whether the applicant acted with due diligence and dispatch. The applicant would have to show that the delay was on account of reasons beyond the control of applicant and despite all possible efforts by the applicant.
24. The proviso to Section 34 (3) of the Act is similar to that of Section 5 of the Limitation Act. It also relates to extension of period of limitation. In the instant case, the petitioner in the application for condonation of delay of 11 days in filing has pleaded that though the award was received by the concerned officer on the same day but inadvertently, due to bonafide mistake of the clerk of the counsel, the case file got tagged with another bundle of decided case file, which could be found only on 07.05.2019. Immediately, the petition was prepared and sent to the department for getting it signed, which resulted into the delay of 11 days.
25. Admittedly, this petition has been filed beyond the period of 90 days but within the extended period of 30 days as provided under Section 34 (3) of the Act. There is no denial of the fact that the petitioner is a company owned and controlled by the Govt. of India having different departments and internal compliances are made which are time consuming. It has been pleaded that inadvertently the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.18 of 54 relevant file got tagged with the bundle of decided case file due to bonafide misstate of the clerk and same could be found out on 07.05.2019, which resulted into delay.
26. I am of the view that that sufficient cause has been given by the petitioner for filing the objections beyond the period of 90 days as contemplated under the act. The act of the petitioner seems to be bonafide. It cannot be said that there was intentional delay on the part of the petitioner to file this petition.
27. For the aforesaid reasons, I am of the view that it is a fit case where the application moved by the petitioner for condonation of delay of 11 days be allowed. I order accordingly and condone the delay.
28. Now, coming to the objections raised in the arbitral award dated 29.01.2019.
29. The scope of enquiry in Section 34 proceeding is restricted to consideration whether any one of the grounds mentioned in Section 34(2) exists for settingaside the award.
30. Section 34 of the Arbitration and Conciliation Act reads as under:
"34.Application for setting aside arbitral award (1)Recourse to a court against an arbitral award may be made only by an application for setting aside such OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.19 of 54 award in accordance with subsection (2) and sub sec tion (3).
(2)An arbitral award may be set aside by the court only if
(a) the party making the application furnishes proof that
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any in dication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contem plated by or not falling within the terms of the submis sion to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submit ted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accor dance with this Part; or
(b) the court finds that
(i) the subjectmatter of the dispute is not capable of settlement by arbitration under the law for the time be ing in force, or
(ii) the arbitral award is in conflict with the public pol icy of India.
Explanation I For the avoidance of any doubt, it is clar ified that an award is in conflict with the public policy OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.20 of 54 of India only if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81."
ii) It is in contravention with the fundamental policy of Indian law;
iii) It is in conflict with the most basic notions of moral ity or justice.
ExplanationII For the avoidance of doubt, the test as to whether there is a contravention with the fundamen tal policy of Indian law shall not entail a review on the merits of the dispute.
[2 (A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
31. Normally, the general principles are that the decision of the Arbitrator unless there is an error apparent on the face of the award which makes it unsustainable, is not to be set aside even if the court as a court of law would come to a different conclusion on the same facts. The court cannot reappraise the evidence and it is not open to the court to sit in appeal over the conclusion of the arbitrator. It is not open to the court to set aside a finding of fact arrived at by the arbitrator and only grounds on which the award can be cancelled are those mentioned in the Arbitration Act. Where the arbitrator assigns cogent grounds and sufficient reasons and no error of law or miscon duct is cited, the award will not call for interference by the court in exercise of the power vested in it.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.21 of 54
32. In Sudarsan Trading Co. v. Government of Kerela & Anr.
1989 AIR 890, it was observed that Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the par ties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the competency of the arbitrator in the case. By purporting to construe the contract, the court could not take upon itself the burden of saying that this was contrary to the contract and, as such, beyond jurisdiction.
33. In the case of Hiedelberg Cement India Ltd Vs. The Indure Pvt Ltd, OMP (Comm) No. 413/2019 decided on 29.01.2020, it was held that law of judicial review and interference in proceedings un der Section 34 of the Act is no more res integra. Reference of the case Associate Builders v/s Delhi Development Authority, (2015) 3 SCC 49 was made, where the Supreme Court has held as under: "19. When it came to construing the expression the pub lic policy of India contained in Section 34(2)(b)(ii) of the Arbitration Act, 1996, this Court in ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 : held: (SCC pp.
72728 & 74445, paras 31 & 74)
31. Therefore, in our view, the phrase public policy of India used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.22 of 54 O.M.P. (COMM) 413/2019 Page 30 of 37 from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/deci sion is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term public policy in Renusagar case [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] it is required to be held that the award could be set aside if it is patently illegal.
The result would be award could be set aside if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality, or (d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the il legality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.
74. In the result, it is held that: (A)(1) The court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that:
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any in dication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contem plated by or not falling within the terms of the O.M.P. (COMM) 413/2019 Page 31 of 37 submission to arbi OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.23 of 54 tration, or it contains decisions on matters beyond the scope of the submission to arbitration.
(2) The court may set aside the award:
(i)(a) if the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, (b) fail ing such agreement, the composition of the Arbitral Tri bunal was not in accordance with Part I of the Act,
(ii) if the arbitral procedure was not in accordance with:
(a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. However, exception for setting aside the award on the ground of composition of Arbi tral Tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part I of the Act from which parties cannot derogate.
(c) If the award passed by the Arbitral Tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
(3) The award could be set aside if it is against the pub lic policy of India, that is to say, if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently il legal. (4) It could be challenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act.......
44. It was held that in the very recent judgments, the Supreme Court has once again reiterated the law related to the examination by a Court of an Award under Section 34 of the Act. In Ssangyong Engineering & Construction Co. Ltd. vs. Na tional Highways Authority of India Ltd. 2019 SCC On Line SC 677, the Supreme Court has held as under: OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.24 of 54
35. What is clear, therefore, is that the expression public policy of India, whether contained in Section 34 or in Section 48, would now mean the fundamental policy of Indian law as explained in paragraphs 18 and 27 of As sociate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the Renusagar under standing of this expression. This would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as ex plained in paragraphs 28 and 29 of Associate Builders (supra), would no longer obtain, as under the guise of interfering with an award on the ground that the arbitra tor has not adopted a judicial approach, the Court's in tervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as con tained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders (supra).
36. It is important to notice that the ground for interfer ence insofar as it concerns interest of India has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be under stood as a conflict with the most basic notions of moral ity or justice. This again would be in line with O.M.P. (COMM) 413/2019 Page 34 of 37 paragraphs 36 to 39 of Associate Builders (supra), as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground.
37. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as un derstood in paragraphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in para graphs 36 to 39 of Associate Builders (supra). Explana tion 2 to Section 34(2)(b)(ii) and Explanation 2 to Sec tion 48(2)(b)(ii) was added by the Amendment Act only OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.25 of 54 so that Western Geco (supra), as understood in Asso ciate Builders (supra), and paragraphs 28 and 29 in par ticular, is now done away with.
38. Insofar as domestic awards made in India are con cerned, an additional ground is now available under subsection (2A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality ap pearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within the funda mental policy of Indian law, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.
39. Secondly, it is also made clear that reappreciation of evidence, which is what an appellate court is permit ted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.
40. To elucidate, paragraph 42.1 of Associate Builders (supra), namely, a mere contravention of the substan tive law of India, by itself, is no longer a ground avail able to set aside an arbitral award. Paragraph 42.2 of Associate Builders (supra), however, would remain, for if an arbitrator gives no reasons for an award and con travenes Section 31(3) of the 1996 Act, that would O.M.P. (COMM) 413/2019 Page 35 of 37 certainly amount to a patent illegality on the face of the award.
41. The change made in Section 28(3) by the Amend ment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders (supra), namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator con strues the contract in a manner that no fairminded or reasonable person would; in short, that the arbitrator's view is not even a possible view to take. Also, if the ar bitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of juris OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.26 of 54 diction. This ground of challenge will now fall within the new ground added under Section 34(2A).
42. What is important to note is that a decision which is perverse, as understood in paragraphs 31 and 32 of As sociate Builders (supra), while no longer being a ground for challenge under public policy of India, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Addi tionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as per verse.
45. It was also observed that recently, in Hindustan Con struction Company Limited & Anr. Vs. Union of India & Ors., 2019 SCC OnLine SC 1520, the Apex Court has held as under:
55. Further, this Court has repeatedly held that an appli cation under Section 34 of the Arbitration Act, 1996 is a summary proceeding not in the nature of a regular suit see Canara Nidhi Ltd. v. M. Shashikala 2019 SCC O.M.P. (COMM) 413/2019 Page 36 of 37 OnLine SC 1244 at paragraph 20. As a result, a court reviewing an arbitral award under Section 34 does not sit in appeal over the award, and if the view taken by the arbitrator is possible, no interference is called for see Associated Construction v. Pawanhans Helicopters Limited. (2008) 16 SCC 128 at paragraph 17.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.27 of 54
56. Also, as has been held in the recent deci sion Ssangyong Engineering & Construction Co. Ltd. v. NHAI 2019 SCC OnLine SC 677, after the 2015 Amendment Act, this Court cannot interfere with an ar bitral award on merits. "
34. Before adverting to the rival contentions and the objections raised by the petitioner, it is relevant to discuss some of the clauses of Special Tender Conditions and GCC 1999.
35. 23.2 of Special Tender Conditions provides that the contractor will be required to give 'no claim certificate', while signing the final bill. This 'no claim certificate' constitutes special arrangements, wherein, he admits and acknowledges that no money is due to him in connection with the particular contract by him. After the contractor has given 'no claim certificate' and final bill has been finalized and paid to him, the contractor cannot ask for any more payment even if post audit records show that he has been paid less. Hence, after no claim is given, the contractor cannot even ask for arbitration.
36. Clause 43 (1) of GCC provides that contractor shall prepare and furnish to the engineer once in every month an account giving full and detailed particulars of all claims for any additional expenses to which the contractor may consider himself entitled to and all extra or additional works ordered by engineer which he has executed during the preceding month and no claim for payment for such works will be considered, which has not been included in such particulars. Clause 43 (2) provides that the contractor shall not be OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.28 of 54 entitled to make any claim whatsoever against the railway under or by virtue of or arising out of this contract, nor shall the Railway entertain or consider any such claim, if made by the contractor, after he shall have signed a 'no claim certificate' in favour of the Railway in such form as shall be required by the Railway after the works are finally measured up. The contractor shall be debarred from disputing the correctness of the item covered by 'no claim certificate' or demanding a clearance to arbitration in respect thereof.
37. Clause 64 (1) (i) of GCC provides that in the event of any dispute or difference between the parties, if the Railway fails to make a decision within 120 days, then in such a case but except in any of the 'excepted matters' referred to in clause 63 of the conditions, the contractor, after 120 days but within 180 of his presenting his final claim on disputed matters shall demand in writing that the dispute or difference be referred to arbitration. Clause 64 (1) (ii) (a) provides that the arbitration proceedings shall be presumed to have commenced from the day, a written and valid demand for arbitration is received by the Railway. Clause 64 (1) (iv) of GCC provides that if the contractors does not prefer his specific and final claim in writing within a period of 90 days of receiving the intimation from the Railways that the final bill is ready for payment, he will be deemed to have waived his claim and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. Clause 64.5 provides that where the arbitral award is for the payment of money, no interest shall be payable on whole or OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.29 of 54 any part of the money for any period till the date on which, the award is made. Clause 64.6 provides that the cost of arbitration shall be born by the respective parties. The cost shall interalia include fee of the arbitrator (s) as per the rates fixed by the Railway Administration from time to time. Clause 63 of GCC provides that all disputes and differences of any kind whether during the progress of work or after its completion, whether before or after the determination of contract shall be referred by the contractor to the Railway and the Railway shall within 120 days after receipt of contractor's representation make and notify decisions on all matters in writing provided the matter for which, the provision has been made in clause 8 (a), 18.22 (5), 39, 43 (2), 45 (a), 55, 55A (5), 57, 57A, 61 (1), 61 (2) and 62 (1) (b) of General Conditions of Contract. In any clause of the Special Conditions of the contract shall be deemed as 'excepted matters' and decisions of the Railway authority, thereon shall be final and binding on the contractor provided further that 'excepted matter's shall stand specifically excluded from the purview of the arbitration clause and not be referred to arbitration.
38. Clause 61 (3) of GCC provides that the contractor shall have no claim to any payment of compensation or otherwise, howsoever on account of any profit or advantage which he might have derived from the execution of the work in full but which it did not derive in consequence of determination of contract.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.30 of 54
39. Clause 17B of GCC provides that the time for the execution of work shall be the essence of contract. If the contractor fails to complete the works within the time as specified in the contract for the reasons other than specified in clause 17 & 17A and the railway may if satisfied that the works can be completed by the contracts within reasonable short time, thereafter, allow the contractor for further extension of time as the engineer may decide. On such extension, railway will be entitled to recover damages and appropriate the security deposit and rescind the contract.
40. Clause 17A of GCC provides that if in the opinion of the engineer, the progress of the work has been delayed by the act of railways, the contractor shall immediately give notice in writing within 15 days and make endeavor to make the delay and shall be bound to ask for necessary extension of time. The Engineer shall grant such extension of time. No other compensation shall be payable for works so carried out forward to the extended period of time. The same rates terms & conditions of the contract would be applicable.
41. Clause 16 (3) of GCC 1999 provides that no interest will be payable upon the earnest money and security deposit or amounts payable to the contractors under the contract but the Government securities deposited in terms of Subclause (1) of this clause will be payable with interest accrued thereon.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.31 of 54
42. Clause 36 (3) provides that the contractor shall not be entitled to the extra cost, if any, incurred by him during the period of the suspension of the work; but in the event of any such mention ordered by the engineers for the reasons other then aforementioned and when each such period of suspension exceeds 14 days, the contractor shall be entitled to such extension of time for completion of the work as the engineer may consider proper having regard to the period or periods of such suspensions and to such compensation as the engineer may consider reasonable in respect of sale deeds or wages paid by the contractor to his employee during the period of such suspensions.
43. There is no dispute as to the legal proposition that the Arbitrator being a creature of the contract must operate within the four corners of the contract, he cannot travel beyond it and he cannot award any amount, which is ruled out or prohibited by the terms of the agreement. Of course, if an interpretation of a term of the contract is involved, then the interpretation of the Arbitrator must be accepted unless it is one which could not be reasonably possible. Where the terms of the contract are clear and unambiguous, the Arbitrator cannot ignore it. It is also not in dispute that an Arbitral Tribunal is a creation of an arbitration agreement, it is its lifeline and the Tribunal has to act within the four corners of that agreement. Any award passed in disregard of expressed terms of the contract, would be arbitrary, capricious and without jurisdiction.
OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.32 of 54
44. A perusal of record reveals that after the work was awarded vide letter dated 23.05.2007, the respondent on 08.06.2007 had submitted the Bar chart. It, on 09.07.2007, had sent a letter bringing to the notice that the site is not available for the execution of work. On 14.09.2007, the petitioner had written a letter to DOM/Plg, DRM's Office, New Delhi requesting him to provide the traffic block on line nos. 8, 9, 17 & 18 followed by the letters dated 15.12.2007 & 19.12.2007, whereby, it had requested DOM/Plg, DRM's Office, New Delhi to provide traffic block for line nos. 1 & 2 in DLT area and traffic block for line nos. 4, 5, 8 & 9 in DLT complex and NDLS Yard so that the work could be completed in the stipulated time of nine months. The petitioner then on 08.02.2008, the date nearing to the date of completion i.e. 22.02.2008, had written a letter to the respondent that the work of RPCIV facility in stabling line no. 4 & 5 in DLT complex has been accepted by Sr. DOM/Plg and the traffic block has been sanctioned. The respondent was accordingly requested to start the work.
Record further reveals that after the expiry of period of competition, on 05/10.03.2008, the respondent had written a letter to Sr. DME/ C & W/ NDLS requesting him to provide the approved site plan to be provided to the respondent to enable it to start the work as site. It is also to note that on 18.02.2008, the respondent had requested the petitioner to issue the site plan for stabling line no. 4 & 5, which was followed by a letter dated 11.04.2008 for providing the approved drawing. Record shows that the work could be started on 12.04.2008 i.e. after the date of completion. On 29.01.2010, the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.33 of 54 petitioner had also written a letter to Sr. DOM/Plg to arrange traffic block on stabling line no. 9.
45. The Arbitrator, in Para 3 of the award, has referred the letter of the respondent addressed to the petitioner dated 21.11.2007 Ex. CW1/3 interalia that the work of any particular line can be started after getting the line blocks that too within the block period but out of the original time of completion of nine months, six months have already expired but no block was got sanctioned by the petitioner. Meanwhile, rates of cement and other building materials have gone upto 25% higher than the prevailing rates at the time of acceptance of the tender. In addition to, it was bearing an expenditure of Rs. 30,000/ per month on staff and machinery (vouchers sent with the letter) stating that it was also losing 10% of its working capital of Rs. 30.0 lakhs per month. It was stated that the completion of nine months period was quite insufficient keeping in view the scope of the work and it seemed that the time period was knowingly kept to avoid PVC clause. It was requested that the extension may be accorded with PVC because completion period will certainly be more than one year or in alternative the work may be closed on administrative ground. The respondent had written number of similar letters to the petitioner, some of which were also replied by the petitioner declining PVC but it had accepted the increase in the rates of cement, steel and other building materials and also agreed with the reasons mentioned by the respondent for the extension of time to complete the work. It was observed by the Arbitrator that OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.34 of 54 only the work of stabling lines 4 & 5 could be completed by 05.02.2009.
46. The Arbitrator had also observed that although, the petitioner vide letter dated 29.06.2009 Ex. CW1/24 had acknowledged the difficulties faced by the respondent on account of frequent changes in priorities for the execution of the work on stabling lines no. 8, 9, 17, 18 & 19 and recommended for closure of the contract but even thereafter, it required the respondent to depute men and machinery to complete the work lest to face penal action. He also observed that on the asking of the petitioner for closure of contract on administrative ground, the respondent had submitted the 'no claim certificate' dated 09.04.2010 Ex. CW1/42 and thereafter, the petitioner vide letter dated 01.06.2010 Ex. CW1/43 sanctioned the closure of the contract. The petitioner also asked the respondent to give clear NOC for further action in this matter. The amount of the work done after the closure of the contract was Rs. 1,22,06,538/. It was observed that on 09.06.2010, the final bill was prepared, which the respondent signed with the endorsement 'no claims for measurement accepted' and it was paid to the respondent on 28.06.2010. The respondent dissatisfied with the non payment of PVC and other extra expenses, invoked the arbitration clause vide letter dated 02.11.2011 Ex. CW1/45 but it remained unreplied, despite reminders till 03.08.2016 Ex. CW1/46 to Ex. CW1/49, Ex. CW1/51 and Ex. CW1/52 and the petitioner finally vide letter dated 19.06.2015 Ex. CW1/53 declined the arbitration only on the ground OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.35 of 54 that the contractor has given the 'no claim certificate' to the petitioner. Although, the respondent vide letter dated 13.07.2015 Ex. CW1/50 had represented to the petitioner that 'no claim certificate' was only with regard to final measurements and not regarding its PVC claim, the tender was of 2.14 crores i.e. more than the limit of 1.0 crore and the completion period was also more than one year and the petitioner should reconsider its demand for arbitration but the petitioner then vide letter dated 21.08.2017 Ex. CW1/55 declined the arbitration. This made the respondent file the petition on 13.10.2017 under Section 11 of the Act for the appointment of the arbitrator. Although, the petitioner had opposed the petition on the grounds that it was highly belated and in view of 'no claim certificate', the respondent was not entitled to seek appointment of Arbitrator but the High Court appointed the Arbitrator for adjudication of the disputes in relation to the agreement including the issue "whether the claim is barred by limitation or maintainable in the light of no claim certificate".
47. The Arbitrator while deciding issue no. 3 i.e. whether the claims of the respondent are barred by limitation, had considered clause no. 64 (1) (i) of GCC and contentions of the petitioner and did not find any merit. It was held that the respondent had written a letter on 02.11.2011 for invoking the arbitration and it was upon the petitioner either to allow the arbitration or disallow but the petitioner kept it pending till 19.06.2015 despite repeated reminders, which remained unreplied and ultimately, on 19.06.2015, the petitioner, OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.36 of 54 vide letter Ex. CW1/53 refused the arbitration that too on flimsy ground of NOC. The case of the respondent for non payment of PVC was not considered, which gave a cause to the respondent to make representation, which it made on 13.07.2015 Ex. CW1/15 but the petitioner vide letter dated 24.07.2015 Ex. CW1/54 denied the arbitration without mentioning about PVC but in subsequent letter dated 21.08.2017 Ex. CW1/55, refused arbitration on the ground that it is not permissible in the agreement. It was held that the cause of action to file petition under Section 11 of the Act, in fact accrued to the respondent on 21.07.2017, if not, on 19.06.2015 and the respondent was having limitation of three years to go to the High court under Section 11 of the Act but it much prior to the time limit, filed the petition on 13.10.2017. Reference of the order of the High Court dated 08.12.2017 was made and it was held that since the petition under Section 11 of the Act was allowed on 08.12.2017, the respondent validly filed its claim petition on 13.02.2018 since, there was no occasion at all for the respondent to file any claim before any adjudicating authority prior to the pendency of the petition under Section 11 of the Act. Therefore, it cannot be said that the petition was barred by time.
48. It was also observed that the respondent has not disputed the measurements on the basis of which, the final bill was prepared. There was no dispute with regard to the correctness of the measurements and the payments made on its basis. In this case, the claimant was claiming PVC benefits from the very beginning, which OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.37 of 54 were being denied and further the final payment did not contain the PVC benefit, so invoking arbitration on 02.11.2011 cannot be said to be beyond the prescribed period of limitation of three years from 07.11.2011 onward. The case of Kartar Singh & Co. Vs. PSEB (supra) was discussed, where, it was held that if the respondent after having received the letter of invocation, sits over the same and neither rejects the application nor appoints the Arbitrator and when after lapse of considerable time approaches the Court under Section 11 of the Act and the respondent opposes the prayer alleging expiry of limitation, then accepting the objection of limitation will nullify the scheme of the Act.
49. The Arbitrator also referred the case of Pandit Construction Co. Vs. DDA (supra), where it was held that period of limitation of 90 days provided under clause 25 of GCC is violative of Section 28
(b) of the Indian Contract Act, 1872 r/w Article 137 of the Limitation Act. The Arbitrator also distinguished the cases of Steel Authority of India Ltd Vs. J. C. Buddhiraja, Government & mining contractor (supra), Arvind Kumar Jain Vs. UOI (supra), State of Goa VS. Praveen Enterprises (supra), L. C. Hanumanthappa Vs. H. B. Shivakumar (supra), Kanwar Singh Saini Vs. High Court of Delhi (supra), Harshad Chiman Lal Modi Vs. DLF Universal Ltd & Anr (supra), DDA Vs. R. S. Sharma (supra), Pt. Munshi Ram & Associates Pvt Ltd Vs. DDA & Anr (supra).
50. Having gone through the material placed on record and the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.38 of 54 contentions of Ld. Counsel for the parties, I am of the view that a logical conclusion has been given by the Arbitrator, which does not require interference from the Court. In the instant case, the respondent had requested the petitioner invoking the arbitration clause vide letter dated 02.11.2011 after the final bill was paid and the bank guarantee was released i.e. within 120 days. It was the petitioner / Railways, which sat over the matter and did not respond to the letter till 19.06.2015 despite repeated reminders, without mentioning anything about PVC benefits. The respondent then wrote a letter dated 13.07.2015, which was responded vide letter dated 21.08.2017 declining arbitration and PVC benefits. In the instant case, the respondent had filed the petition under Section 11 of the Act on 13.10.2017 i.e. within limitation of three years, so it cannot be said that the claims filed by the respondent are barred by limitation.
I am not in agreement with the contention of Ld. Counsel for the petitioner that the respondent could have approached the High Court for the appointment of Arbitrator after the expiry of 30 days from 19.06.2015 and it sat over the issue and approached the High Court on 13.10.2017 i.e. after the gap of more than 5 years and 11 months being barred by limitation. In this case, the cause of action arose, when the petitioner declined for arbitration and the PVC benefits on 21.08.2017 and the respondent within no time had approached the High Court for the appointment of Arbitrator.
51. As regards the findings on issue no. 4, whether the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.39 of 54 respondent is estopped by way of its own acts and conducts as alleged, it is true that the respondent had requested for foreclosure of contract vide letters dated 11.02.2010 Ex. CW1/39 and dated 16.02.2010 Ex. CW1/41 but on plain reading of these letters, I find that the said letters were sent when the site was not made available, cost of the cement and steel had gone high and PVC benefits were not paid. The petitioner in its letter had also conceded these facts as regards the non availability of site and stabling blocks. It had also given NOC dated 09.04.2010 Ex. CW1/42 for foreclosure of the contract on administrative ground and foreclosed the contract on 01.06.2010 after getting the financial concurrence.
52. It is true that before quoting the rates, the contractor / respondent could have visited the site and anticipated the difficulties but said conditions are equally applicable to the department / petitioner, which before inviting tenders could have foreseen whether the site is available, designs, drawing and stabling blocks are ready but in this case, the blocks were made available to the respondent even after the expiry of the date of completion. When in the contract, it is stated that the time is the essence of the contract, why the site / blocks were not made available in advance.
53. The Arbitrator has rightly observed that the contract was foreclosed not on volunteered request of the respondent or that the volunteered NOC was given by the respondent. A bare perusal of letter of the respondent dated 11.02.2010 Ex. CW1/40 would reveal OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.40 of 54 that foreclosure was sought because of various faults on the part of the petitioner, which the petitioner had also accepted i.e. work of stabling lines no. 4 & 5 could only be completed in February 2009 when the blocks could be arranged, the petitioner could not succeed to get blocks of stabling line no. 18 & 19 till 29.06.2009 Ex. CW1/24, ADEN of the respondent had shown his inability to arrange the blocks and himself had proposed to close the work on administrative grounds. This inter se departmental letter is very important specially admitting the refusal on the part of the petitioner to block lines 1, 2, 3, 8, 9, 17 & 18. Further, earlier the traffic block of stabling line 18 was asked, which was the original part of the sanctioned work. Then the priority was changed for stabling line no. 8 & 9. The ADEN himself had recommended to close the contract.
In these circumstances, the Arbitrator has rightly held that how it can be said that the foreclosure was on the request or at the behest of the respondent. He observed that 'no claim certificate' was in respect of no claim against the Railway on account of closure of contract on administrative ground but it was not in respect of giving up its due claims. In the final bill Ex. RW1/59, the respondent had written 'no claim for measurement accepted' meaning by that it had no objection qua the measurements but not qua the other due claims over and above the measurements.
The Arbitrator after reproducing the NOC has rightly observed that it was only on dotted lines given by the petitioner to the respondent to sign without mentioning number, date & year of the order and getting signed such certificate on dotted line by the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.41 of 54 petitioner from the respondent prior to release of its dues is not legal or valid. Since, at that time, the respondent had no alternative but to sign it under the forced circumstances for getting its withheld dues including the payment of final bill and release of bank guarantee. In this case, the above payments were made much later than the date of the NOC. Further, the respondent was bound to sign the certificate in view of clause 23.2 of Special Tender Conditions, while signing the final bill. The Arbitrator has also referred the testimony of RW1, who in specific terms has stated that unless the contractor submits NOC to the department, payment of final bill is not processed.
It was rightly observed that after receiving the payment under final bill on 06.07.2011, the respondent promptly vide letter dated 02.11.2011 invoked the arbitration and had the NOC and seeking foreclosure of contract been volunteered and without coercion, there would have been no rhyme or reason to seek the arbitration. It was also held in the case of Ambika Construction Co. (supra) that clause 43 (2) of GCC does not absolutely bar the contractor from raising genuine claims even after submission of NOC.
54. For the aforesaid discussions, I am of the view that the Arbitrator, while deciding the above issue has operated within the four corners of the contract and has not travelled beyond it. He has not decided this issue contrary to the terms of the contract, so it cannot be said that he misconducted himself or the interpretation given by him is not reasonable.
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55. Now coming to issue no. 1, whether the respondent is entitled for the reliefs as claimed in the claim statements, it has been discussed in the preceding paras that the delay was on the part of the petitioner and not on the part of the respondent. It was rightly observed that the work was of stabling line no. 1, 2, 4, 5 7, 8, 17 & 18 etc, which was to be completed in nine months from 23.05.2007 to 22.02.2008 but the respondent could provide blocks for stabling line no. 4 & 5 only in April / May 2008 i.e. much after the expiry of period of nine months. The Arbitrator has referred a letter dated 29.06.2009 Ex. CW1/24 interalia that initially the work was planned for stabling line no. 8, 9, 17 & 18 for which blocks were asked but due to departmental constraints, the blocks during the period from 23.05.2007 to 28.12.2007 could be arranged for the stabling line 4 & 5 only. Even for these two lines, the competent authority approved the drawing on 08.01.2008 and the respondent was asked to start the work on 08.02.2008. The department had asked for the blocking of other lines but the same was not allowed by the competent authority. It was rightly observed that all the three times, extensions were granted without penalty under Clause 17A; impliedly admitting no fault on the part of the respondent agreeing with the reasons mentioned by the respondent.
The Arbitrator was also right in rejecting the contention of the department that as per practice and norms of civil contract, blocks are never sanctioned in advance. It was held that it is not a case of getting sanction of blocks in advance but a case where the work was awarded and the respondent was to start the work immediately. It OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.43 of 54 was observed that the respondent was continuously suffering huge losses due to increase in prices of cement and other materials, which were also admitted by the department. So, how in these circumstances, when the department was at fault on material aspects, it could blame the respondent for delays.
56. Facts & circumstances show that it is a case of lack of planning, foresightedness and coordination. It was incumbent upon the petitioner to arrange drawings / designs and make available the site before inviting tender / awarding the work, so that there may not be any delay in the execution of work, since, in such like contract, the time is the essence of the contract.
57. Now coming to PVC benefits, as observed in the preceding paras, there was inordinate delay on the part of the petitioner to get the work completed. The work involved for number of stabling lines but even for sanction of blocks for stabling lines 4 & 5, the petitioner took about 11 months. The Arbitrator has rightly observed that how in these circumstances, the period of nine months for the whole work would be reasonable or justifiable. It was observed that the only witness examined by the petitioner could not deny the claim of the respondent that the petitioner never planned for the stabling lines in advance. It was held that there is every merit in the case of the respondent that the period of nine months was deliberately kept in mind by the petitioner to deprive the respondent from the benefit of PVC clause, which was otherwise permissible, if the period of OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.44 of 54 completion would have been more than one year and the work would have been of more than of 1.0 crore. It was also observed that admittedly, the work done was more than 1.0 crore. Had reasonable or sufficient time been given for completion of work, the petitioner would have been legally bound to give PVC benefits to the respondent. Thus, denial of PVC benefit is totally illegal and invalid.
58. In the instant case as evident from the record, the period went upto 22 months over and above the initial period of nine months. Even by then, the contract was foreclosed by the petitioner on administrative grounds. The Arbitrator also found no merits in the contention of the petitioner that PVC benefits cannot be given under Cluase 17 (A) (iii) GCC and clause 33. It was held that petitioner cannot be allowed to take benefits of its own wrong. When there is a breach of contract on the part of the petitioner, the respondent is certainly entitled for damages and the contractual clauses which disentitle the agreed party to the benefit of Section 55 and 73 of the Contract Act would be void being violative of Section 3 of the Act. In the case of Simplex Concrete Pipes Ind Ltd Vs. UIO (supra) and Ramachandra Reddy Vs. UOI (supra), it was held that a clause in a contract cannot prevent the award of damages, although, the same are otherwise payable in law.
This was a logical conclusion given by the Arbitrator and does not require interference from the Court nor it can be said that the Arbitrator went beyond the terms & conditions of the contract or exceeded his jurisdiction. He has correctly held that the respondent OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.45 of 54 is entitled to PVC benefits / damages / expenses incurred for keeping men & machinery etc at site during the extended period, which is the subject matter of claim no. 1 & 2.
59. Now coming to claim no. 1 i.e. expenses incurred for keeping men & machinery at site during the extended period, it was observed that the period was extended upto 30.12.2009 i.e. for 22 months over & above the initial agreed period of nine months. Even on 30.12.2009 or thereafter, the petitioner never required the respondent to remove its men & machinery at site rather pressed the respondent to execute the work at site giving threats of imposing penalty. It foreclosed the contract on 01.06.2010. Therefore, for the extra 25 months, the respondent had to put its men & machinery at site for which, it had sent vouchers, correctness of which was never challenged by the petitioner. Further, the respondent has placed on record salary register of its staff and supporting vouchers, genuineness of which is also not in doubt, as per which, the respondent has been incurring Rs. 40,700/ on its staff but it has restricted its claim to a sum of Rs. 30,000/ per month. Its machinery also remained idle on which it has been incurring Rs. 13,000/ per month. Multiplying the above with 25 months, the Arbitrator calculated the amount as Rs. 7,50,00/ + Rs. 3,25,000/ respectively, total coming to Rs. 10,75,000/.
In view of the observations made in issue no. 1, no interference from this Court is called for.
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60. For claim no. 2 i.e. PVC benefits of Rs. 20,97,418/, in view of the observations recorded in preceding paras, the Arbitrator applying the Railway Rules based on RBI Indexes has awarded the said amount, which also does not call for interference from the Court.
61. In respect of claim no. 3 i.e. loss of profit on the balance work, the contract was foreclosed for Rs. 1,22,06,538/, though, the cost of the awarded work was Rs. 2,14,26,745/. It is true that the remaining work could not be performed but correspondence would reveal that the respondent time & again had requested the petitioner to foreclose the contract for not making available the site, the department had also given option in this respect, which the respondent had readily accepted. So in these circumstances and in view of clause 61 (3) of GCC, which provides that the contractor shall have no claim to any payment of compensation or otherwise, howsoever on account of any profit or advantage which he might have derived from the execution of the work in full but which it did not derive in consequence of determination of contract, I am of the opinion that the Arbitrator went beyond the terms of the contract and awarding 10% profit on the remaining work of Rs. 92,20,207/, which cannot be permitted. The case laws referred by the Arbitrator i.e. DDA Vs. Polo Singh & Co (supra) and Himanchal Joint Venture Vs. Panilapina World Transport Pvt Ltd, FAO (OS) 123/2008, decided on 08.08.2008, talks about awarding 10% of contract value as fair & reasonable amount qua loss of profit but in this case, the OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.47 of 54 contract and GCC completely bar the Arbitrator to award any amount towards loss of profit in case of foreclosure of contract. The claim of the respondent for Rs. 9,22,022/ is accordingly disallowed being beyond the terms & conditions of the contract.
62. Now coming to interest i.e. claim no. 4, in the instant case, the respondent had claimed interest @ 12% per annum on the claimed amount. The contention of the petitioner before the Arbitrator was that in view of clause 16 (3), 63 & 64 (5) of GCC and Section 31 (7) of the Act, the interest is not payable if barred by the terms & conditions of the contract referring the cases of UOI Vs. Ambika Construction Company, 2016 (3) RAJ 1 SC, Executive Engineer Dhenkenal Minor Irrigation Division Vs. N. C. Budhraj , AIR 2001 SC 626, UOI Vs. Crafters Engineering & Leasing Pvt Ltd, VI (2011) SLT 101 and Sh. Kamachi Aman Construction Vs. Divisional Railway Manager, VI (2010) SLT 131. The Arbitrator did not find merits in his contention. It was held that as per the provisions of Section 31 (7) of the Act, reasonable rate of interest is permissible from the date of cause of action till the date of award unless otherwise agreed by the parties. It was observed that clause 16 (1) of GCC relates to earnest money and security deposit but the case in hand is not the claim for interest on the earnest money or security deposit, hence, this clause is not applicable. As to the applicability of clause 64.3 or clause 64.5. The Arbitrator referred the case of Raveechee & Co. Vs. UOI, AIR 2018 SC 3109 and UOI Vs. Pradeep Viond Construction Co. MANU/SCOR/30509/2017, OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.48 of 54 where the rulings cited by the counsel for the petitioner have been considered, where it was held that a claimant becomes entitled to interest not as a compensation for any damages done but for being kept out of money due to him. In a case of unascertained damages, question of interest would arise. Such damages could attract interest pendentelite for the period from the commencement of the arbitration to date of the award. Thus, the liability of interest pendentelite does not arise from any term of contract but in the course of determination by the Arbitrator of the losses or damages that are due to the claimant. The Arbitrator quoted the para of the case of Raveechee (supra) :
"....... Such a power must be considered inherent in an Arbitrator, who exercises the power to do equity, unless the agreement expressly bars the Arbitrator from awarding interest pendentelite. An agreement, which bars interest is essentially an agreement that the parties will not claim interest on specified amounts. It does not bar the Arbitrator, who is never a party to the agreement from awarding it".
63. I do not find any reason to differ with the observations / findings given by the Arbitrator. In the case of MSK Projects (I) (JV) Ltd v/s State of Rajasthan & anr, 2011 (8) JT 37 (SC), it was held that Arbitrator is competent to award interest for the period commencing with the date of award or the date of decree or date of realization, which ever is earlier. While the amount of interest is a matter of substantive law, the grant of interest for the award period is matter of procedure. In terms of Section 3 of the Interest Act, 1978, the Arbitrator is competent to award interest at the rates OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.49 of 54 prevailing in banking transaction. Thus, impliedly, the court has power to vary the rate of interest agreed by the parties.
64. In the instant case, the Arbitrator has rightly awarded the reasonable pendentelite interest @8% per annum. As to awarding future rate of interest @12% per annum, to my mind, the said interest should also be @ 8% per annum, which is a reasonable rate of interest keeping in view the prevailing rates of nationalized banks.
65. As regards claim no. 5 i.e. Rs. 4,95,300/, on account of mobilization and demobilization of resources from one site to another site, it was rightly held by the Arbitrator that the respondent was supposed to bring its men & material at site, where the work was to be executed including shifting from one place to another. The petitioner has nothing to do with it. Even as per clause 30.3 of Special Tender Conditions, this claim is not permissible.
I do not find any reason to differ with this finding, which is logical & reasonable.
66. As to claim no. 6 i.e. Rs. 3,00,000/ as arbitration fee, admittedly, the respondent has deposited Rs. 1,59,281/ with DIAC as the Arbitrator's fee and miscellaneous expenses of its share and the same amount was also deposited by the petitioner but Clause 64.6 provides that the cost of arbitration shall be born by the respective parties. In view of clause 64.6 of GCC, I am of the view that the respondent is not entitled to cost and the Arbitrator has OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.50 of 54 exceeded his jurisdiction in awarding the cost.
Conclusion:
67. In the instant case, most of the grounds raised by the petitioner to challenge the award are factual in nature which have been already considered and adjudicated in the impugned award. It is outside the scope of Section 34 of the Act to reappreciate the entire evidence and come to conclusion because such an approach would defeat the purpose of arbitration proceedings. It has been consistently held that when a court is applying the public policy test to an arbitration award, it does not act as a court of appeal and consequently, errors of facts cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quality and quantity of evidence to be relied upon when he delivers his arbitral award. Thus, an award based on little evidence or no evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once, it is found that the arbitrator's approach is not arbitrary or capricious, then he is the last word on facts. (P.R Shah, Shares & Stock Brokers (P) Ltd v. B.H.H Securities (P) Ltd. [(2012) 1 SCC 594).
68. A bare perusal of the arbitral award shows that the arbitrator has examined all the relevant aspects of the contract, the correspondences made by the parties, the terms of the contract and the conduct of the parties. He has remained inside the parameters of OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.51 of 54 the contract and construed the provisions of the contract. The petitioner has failed to establish that the arbitrator has travelled beyond the terms of the contract.
69. Having examined the various contentions of the petitioner on the touchstone of the parameters of interference as explicitly laid down by the Supreme Court in several judgments referred to above, I am of the view that the impugned Award except the award on claim no. 3 i.e. loss of profit on balance work, claim no. 4 i.e. future interest and claim no. 6 i.e. arbitration cost does not call for interference. This Court cannot reappreciate evidence or interpret the Clauses of the Agreement which the petitioner is calling upon the Court to do. The contentions of the petitioner are thus rejected having no merit. I am of the view that the arbitration award being a reasoned one except the award on claim no. 3 i.e. loss of profit on balance work, claim no. 4 i.e. future interest and claim no. 6 i.e. arbitration cost does not suffer from any infirmity or error apparent on the face of the record. It is not for this Court to sit in appraisal of the evidence led before the learned Arbitrator and this Court will not open itself to the task of being a judge on the evidence placed before the learned Arbitrator which was subject matter of dispute. In the present case, the Arbitrator has deliberated on the issues under reference which were within his competency and as per the agreement entered into between the parties. There are no allegations against the learned Arbitrator who was a Retired District Judge being well versed to deal with the dispute before him, of mis OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.52 of 54 conduct nor of having misconducted the proceedings which have either been specifically alleged by the petitioner or established. The Arbitrator has duly explained the reasons for arriving at his decisions. There is nothing to indicate that the award violates Section 28 (3) of the Act or that, it is in conflict with the basic notions of justice and the fair play and fundamental policy of Indian law or in contravention of the terms of the agreement or that it lacks reasoning as pleaded in the petition.
70. It has been held in the case of Jivarabhai Ujamashi Sheth Vs. Chintamanrao Balaji, AIR 1965 SC 214, if the erroneous part of the award is severable, the proper or good part of the award may be sustained.
71. For the aforesaid reasons and in view of the law laid down in the case of Jivarabhai Ujamashi Sheth (supra), the award on claim no. 1, claim no. 2, claim no. 5 is upheld. The award on claim no. 3 and claim no. 6 is set aside. The award on claim no. 4 is partially modified and the respondent is allowed pendentelite & future interest on the claim no. 1 and 2 @ 9% per annum from 13.10.2017 till realization.
72. The petitioner is directed to pay as under:
Claim No. 1 For staff & machinery during the idle period Rs. 10,75,000/ Claim No. 2 For PVC Benefits Rs. 20,97,418/ OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.53 of 54 Claim No. 3 For loss of profit on balance work NIL Claim No. 4 Interest pendentelite & future @8% on claim nos. 1 & 2 w.e.f.
13.10.2017 till realization.
Claim No. 5 For mobilizations and demobilization of men Already declined and materials Claim No. 6 Arbitration cost NIL
73. The petition is disposed of accordingly. Parties are left to bear their own costs.
74. File be consigned to record room.
Announced in open court today i.e. 19th January 2021 (Sanjiv Jain) District Judge (Commercial) 03 Patiala House Courts, New Delhi OMP Comm No.87/19 UOI Vs. M/s Bansal Construction Co. Page No.54 of 54