Delhi High Court - Orders
Ministry Of Road Transport And Highways vs Afcon Sibmost Jv on 15 December, 2023
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 476/2023, I.As. 23414-23415/2023
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
..... Petitioner
Through: Mr. Alok Kumar Jain and Mr. Ashok
Gurnani, Advocates.
versus
AFCON SIBMOST JV ..... Respondent
Through: Mr. Sandeep Sethi, Senior Advocate
with Mr. Manu Seshadri, Mr. Abhijit
Lal, Mr. Anubhav Mishra,
Mr. Moinul Islam and Mr. Sahil
Mangnani, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 15.12.2023 I.A. 23413/2023, I.A. 23416/2023 (for exemption)
1. Exemption is granted, subject to all just exceptions.
2. Petitioner shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. Accordingly, the applications are disposed of.
O.M.P. (COMM) 476/2023
4. Petitioner impugns the award dated 11th July, 2023, passed by the Arbitral Tribunal in the present petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 ("Act"). Petitioner had awarded an Engineering, Procurement and Construction contract to the Respondent for the replacement of the super-structure of the existing 5.575 km long This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/12/2023 at 20:29:57 Mahatma Gandhi Setu in Bihar. The contract specified use of HPS70W grade weathering steel, however, due to lack of availability, Respondent suggested replacement with E410C grade steel. However, disputes arose regarding the aspect of passing of cost savings to the concerned Ministry due to change in grade of steel (estimated at approximately INR 87 crores by Petitioner), whereby the Respondent claimed that the contract permitted Respondent to use any grade of steel other than HPS70W. The dispute was ultimately referred to arbitration. The Tribunal passed an award on 11th July, 2023 ("Award"), inter alia holding that the change in grade of steel does not amount to change of scope, and that the Petitioner (who was the Respondent in the arbitral proceedings) is not entitled to make any recovery due to change in grade of steel. The Petitioner has filed the present petition, being aggrieved with the findings returned by the Tribunal.
5. Amongst the several grounds urged in the challenge to the Award herein, the Petitioner has contended that the statement of claim sought purely declaratory reliefs, and is therefore hit by the provisions Specific Relief Act, 1963 ("SRA") in as much as Section 34 of the SRA bars a claim for declaration simpliciter. It is also contended that even the Award only grants a declaration, and not any consequential relief.
6. Mr. Sandeep Sethi, Senior Counsel for Respondent, states that the nature of relief was couched in its declaratory form as the project was ongoing at the time the claim was filed, and the Respondent had not raised the final bill at the time of filing the claim. Further, Mr. Sethi contends that as the Arbitral Tribunal has returned a finding and declared that the change in grade of steel does not amount to change of scope under the contract, the Claimant-Respondent is entitled to the recovery of the certified bills, which This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/12/2023 at 20:29:57 were withheld by the Petitioner. The only ground urged by the Petitioner to withhold the payment of the bills raised by the Respondent was the pendency of the arbitration proceedings.
7. In rejoinder, Counsel for Petitioners submits that it is incorrect to suggest that payments were withheld only due to pendency of arbitration proceedings; the bills were, in fact, not certified by the concerned engineer as per the contract and are disputed. There is no adjudication on this issue.
8. In the opinion of the court, this matter would require consideration. Issue notice. Mr. Manu Seshadri, counsel accepts notice on behalf of the Respondent.
9. Parties are directed to file a brief note of submissions, not exceeding five pages, along with relevant case laws, if any, one week before the next date of hearing. Copy thereof also be sent to the Court Master via e-mail, within the same timeline. The note should concisely indicate the following:
(i) the exact dispute before the learned Arbitral Tribunal, (ii) the claims in respect of which the Petitioner is aggrieved, (iii) the decision as well as the reasoning of the learned Arbitral Tribunal, qua such claims, with reference to the relevant para and page numbers of the impugned award, and (iv) grounds as to why the decision of the learned Arbitral Tribunal merits/ does not merit interference, in view of Section 34 of the Arbitration and Conciliation Act, 1996 and the parameters laid down by the Supreme Court in respect of each ground of challenge raised.
10. List on 5th February, 2024.
SANJEEV NARULA, J DECEMBER 15, 2023/nk This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/12/2023 at 20:29:58