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Engineers India Limited vs Jmc Projects India Ltd on 10 January, 2019

Author: Rajiv Shakdher

Bench: Rajiv Shakdher

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     O.M.P. (COMM) 458/2018
ENGINEERS INDIA LIMITED                                  ..... Petitioner
                   Through:            Mr. Abhinav Vasisht, Sr. Advocate
                                       with Mr. Rahul Narayanan, Ms.
                                       Akshita Sachdeva, Advocates.
                   versus
JMC PROJECTS INDIA LTD                                  ..... Respondent
                   Through:            Mr. Dayan Krishnan, Sr. Adv. with
                                       Mr. Vikrant Singh, Mr. Mangesh
                                       Krishna, Mr. Nenkat Rao, Mr. Sameer
                                       Sagar and Ms. Aakashi, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
             ORDER

%            10.01.2019
I.A. 15233/2018

1. For the moment Mr. Vasisht, learned senior counsel who appears for petitioner has sought to assail the reasoning given in the impugned award vis-a-vis claim no.3 and 6. In so far as claim no.3 is concerned, it concerns demand for money on account of price escalation due to delay in the completion of the contract. Claim no. 6, on the other hand, relates to demand raised, due to rate revision for quantity variation of BOQ items.

2. As regards claim no.3, it is Mr. Vasisht's submission that there is a clear bar in the contract in regard to payment of price escalation and that despite the bar, the learned Arbitrator has awarded monies under this claim. 2.1 In this connection, Mr. Vasisht has drawn my attention to the following clauses of the GCC: clause 20, clause 21, clause 65.5, clause 65.6 and clause 65.7.

2.2 In addition thereto learned senior counsel has also relied upon para 3 of the Detailed Letter of Acceptance dated 13.05.2010 ('DLOA'). Besides this, reference is also made to clause 4.3 of the Special Conditions of the Contract (in short 'SCC').

3. The learned Arbitrator has broadly come to the conclusion that the aforementioned clauses of GCC should be construed reasonably and in that behalf has relied upon various judgments of the Supreme Court.

4. To be noted the learned Arbitrator has also returned finding of fact that out of the 19 months for which the subject project was delayed, at least, a part of the delay was not attributable to the respondent i.e. the original claimant.

5. In so far as claim no.6 is concerned, Mr Vasisht has referred me to following clauses of GCC: clause 53, clause 53.5(iv) and clause 53.5(a). Based on the aforesaid clauses Mr. Vasisht says that no amount could have been paid in so far as claim no.6 was concerned.

6. According to me, the matter requires examination. 6.1 Accordingly, issue notice.

7. Since, the petitioner seeks stay of the operation of the impugned award, the same is ordered, subject to petitioner depositing the awarded amount after keeping back the sums awarded towards claim no. 3 and 6 as also the proportionate interest awarded qua the said claims. Sans this the remaining awarded amounts will be deposited with the Registry of this Court.

7.1 The needful will be done within 3 weeks from today. 7.2 In the event, the amount, as indicated above, is deposited, the same will be invested by the Registry in an interest bearing fixed deposit, maintained with a nationalised bank.

8. Reply, if any, be filed within 3 weeks.

9. The respondents will have the liberty to seek the release of the sum deposited subject to furnishing a bank guarantee of an equivalent amount.

10. Renotify the matter on 23.05.2019.

O.M.P. (COMM) 458/2018

11. Renotify the matter on 23.05.2019.

RAJIV SHAKDHER, J JANUARY 10, 2019/hs O.M.P. (COMM) 458/2018 Page 3 of 3