Delhi High Court - Orders
Jmc Projects India Ltd vs Ministry Of Health And Family Welfare, ... on 26 May, 2022
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 219/2022 & I.A. 7040/2022, I.A. 7041/2022,
I.A. 7043/2022, I.A. 7044/2022
JMC PROJECTS INDIA LTD ..... Petitioner
Through: Mr. Dayan Krishnan, Senior
Advocate with Mr. Vikas Mishra,
Advocate, Mr. Yogesh Dalal,
Advocate, Mr. Nikhil Chawla,
Advocate, Mr. Manish Jha, Advocate
and Mr. Sukrit Seth, Advocate.
versus
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA ..... Respondent
Through: Mr. Rajesh Gogna, CGSC with Mr.
Vaibhav Anand, Advocate and Ms.
Priya Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 26.05.2022 I.A. 7042/2022 Exemption allowed, subject to just exceptions. Let requisite compliances be made within 01 week. Application stands disposed of.
O.M.P. (COMM) 219/2022 By way of the present petition under section 34 of the Arbitration & Conciliation Act 1996 ('A&C Act'), the petitioner impugns arbitral award dated 24.09.2021 made by the learned Sole Arbitrator on the claims and the counter-claims that arose between the Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:31.05.2022 O.M.P. (COMM) 219/2022 Page 1 of 4 11:12:30 parties from a contract agreement dated 12.08.2010 and ancillary documents, which are also deemed to be part and parcel of that agreement. Mr. Dayan Krishnan, learned senior counsel appearing for the petitioner submits that upon disputes having arisen between the parties the petitioner raised 11 claims before the learned Sole Arbitrator; whereas the respondent raised 11 counter-claims. By way of the impugned award the learned Sole Arbitrator has awarded the sum of Rs.22,47,45,753/- crores to the petitioner against the claims made; and awarded Rs. 3,80,98,800/- crores to the respondent against their counter-claims.
2. The principal grounds of challenge to the impugned award taken by way of the present petition are the following :
i. That several claims for compensation have been decided on the basis of purported delays that have been held to be attributable to the petitioner. However, it is submitted, that the learned Sole Arbitrator has erred in ignoring the fact that extension of time was granted by the respondent to the petitioner on 15 occasions without levy of any liquidated damages, from which the inevitable inference is that the delay did not call for levy of compensation; and yet, compensation has been awarded;
ii. That the learned Sole Arbitrator has failed or omitted to adjudicate the claim in relation to certain extra items of work and has, in effect, left the issue open for the parties to take further action in terms of the agreement for these Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:31.05.2022 O.M.P. (COMM) 219/2022 Page 2 of 4 11:12:30 items. This, it is submitted, is a procedure unheard of in law.
iii. That the learned Sole Arbitrator has rejected the claim for interest on certain R.A. Bills, though noting that the same were paid beyond the 15 days period granted for payment. Furthermore, the learned Sole Arbitrator has, without any basis or reasoning, reduced the rate of interest from 18% to 10% per annum.
iv. That the learned Sole Arbitrator has decided the rates for certain items of work, without any basis, and without reference to the report of a Technical Assistant who was engaged for checking the veracity of such rates. In any case, the report of the Technical Assistant was not even communicated to the petitioner.
3. Upon a conspectus of the averments contained in the petition and the submissions made, issue notice on the petition.
4. Mr. Rajesh Gogna, learned CGSC appears for the respondent, accepts notice; seeks time to file reply.
5. Let reply be filed within 06 (six) weeks from today, rejoinder thereto, if any, be filed within 04 (four) weeks thereafter; with copies to the opposing counsel.
6. Re-notify on 20th September 2022.
7. Mr. Krishnan submits that the respondent has not filed any petition challenging impugned award dated 24.09.2021 insofar as it awards the sum of about Rs. 22.47 crores in favour of the petitioner and against the respondent.
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:31.05.2022 O.M.P. (COMM) 219/2022 Page 3 of 4 11:12:308. Mr. Krishnan submits that since upon a set-off, if the claims and counter-claims awarded are left unchallenged or are upheld, it would leave the respondent liable to pay to the petitioner a net sum of Rs. 18,66,46,953/- crores, it would protect the interests of the petitioner if the respondent is prevented from filing any petition seeking to enforce the counter-claims awarded in the respondent's favour.
9. This submission commends itself for acceptance, at least at this stage.
10. Accordingly, the respondent is restrained from enforcing the counter-
claims in the sum of about Rs. 3.80 crores awarded in its favour and against the petitioner, till the next date of hearing.
11. In the meantime, let the arbitral record be called from the learned Sole Arbitrator.
12. Re-notify on 20th September 2022.
ANUP JAIRAM BHAMBHANI, J MAY 26, 2022 ds Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:31.05.2022 O.M.P. (COMM) 219/2022 Page 4 of 4 11:12:30