Delhi District Court
H R Dhankar vs New Delhi Municipal Council on 16 April, 2025
IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL)-03,
PATIALA HOUSE COURTS, NEW DELHI
OMP (COMM)- 35/2020
CNR No. DLND01-001997-2020
In the matter of:
H.R Dhankar
Proprietor of
H.R Builders
Office at B-37, Ashok Vihar,
Phase-1, Delhi-110052 ........ Petitioner
Versus
New Delhi Municipal Council
Palika Kendra,
New Delhi-110001 ...... Respondent
Date of institution of suit : 02.03.2020
Date of Judgment : 16.04.2025
Appearance: Sh. Anurag Kaushik and Sh. Rahul Aggarwal,
ld. Counsels for petitioner.
Sh. Jasman Singh Sethi, ld. Counsel for
respondent.
JUDGMENT
1. The present petition u/s. 34 of Arbitration and Conciliation Act, 1996 (as amended) (in short the Act) has been filed by the petitioner for setting aside award dated 30.11.2019 (hereinafter OMP(Comm)- 35/20 Page 1 of 38 referred as 'impugned award') passed by Ld. Sole Arbitrator in Case Reference No.DAIC/2244/09-18.
2. The petitioner, proprietor of M/s. H R Builders, was claimant before the Ld. Arbitrator. He filed Statement of Claim claiming an amount of Rs.1,23,22,146/- with pendente lite and future interest @ 18% p.a. against the respondent. The petitioner has also prayed for declaring the notice terminating the contract vide Termination Letter dated 24.02.2015 as null and void being against the principles established under law and also to declare the letter of respondent dated 10.09.2018 by which the petitioner was informed about extension of time upto 30.01.2015 subject to levy of compensation at 10% of the tendered amount as null and void.
3. The facts narrated in the petition are that respondent New Delhi Municipal Council, has awarded the work of "Re-surfing of B.K. Dutt Colony, Aliganj Colony, Lodhi Colony, Jor Bagh Colony Road, and other colony service road in Sub-Division III area" to the petitioner vide a Letter of Acceptance dated 27.05.2013 at the tendered amount of Rs.3,70,82,423/-. The respondent had issued letter of commencement of work dated 12.06.2013 to the petitioner. Thereafter, a formal agreement bearing no.15/EE(R-II)/ 2013-2014 was executed on 09.07.2013 between the parties to the petition. The petitioner, after completing the formalities as mandatory, started the work in full swing. The petitioner has reached at the site with all the machines, labour, equipments, OMP(Comm)- 35/20 Page 2 of 38 materials etc required for execution of work in terms of Agreement. As per the petitioner, the work awarded to him was going on smoothly, when to the shock of the petitioner a show cause notice dated 22.11.2013 was issued to the petitioner by the respondent falsely accusing the petitioner for delay in execution of work and suspension of work on the part of petitioner. The petitioner alleged that when he visited the site after letter of award, he observed that the site was not clear because some drain work was in progress, which was immediately conveyed to the respondent vide letter dated 30.07.2013 i.e. prior to receiving of show cause notice. The petitioner, vide reply dated 05.12.2013, clarified the allegations made against him and informed the respondent that petitioner was waiting for the job mix formula for DBM and mastic which are to be done on the road surface and intimation regarding the job mix formula of DBM was received by the petitioner on 14.11.2013 whereas the job mix formula for 25 mm thick mastic was still awaited. Pertinently, the job mix design formula for 25 mm mastic asphalt was issued by the consultant of IIT Delhi to NDMC on 09.12.2013 and thereafter, the respondent handed over the said formula to the petitioner in the middle of December i.e. 13.12.2013. The petitioner in reply to the letter of the respondent dated 27.12.2013, had written letter dated 07.01.2014 thereby categorically refuted the allegations made in the said letter and further informed the respondent that the work was started by the petitioner on 28.11.2013 after job mix formula for DBM was received. The petitioner is stated to have started the work on OMP(Comm)- 35/20 Page 3 of 38 28.11.2013 as he was forced to start the work by the field officer of the respondent despite cold weather / low temperature and the said work was being undertaken in the presence of Junior Engineer and Assistant Engineer of respondent. The fact with respect to Vigilance Department about picking of samples on 30.12.2013 and same was found satisfactory was mentioned in the said letter. The petitioner further vide reply to the letter of respondent dated 03.02.2014 had written letter dated 14.02.2014 wherein the allegations with respect to slow progress of work were refuting and further enumerated the hindrances raised by it during the course of institution of work. The petitioner further informed the respondent that it is not possible to continue the work because of extremely cold weather and after considering all this the respondent may be pleased to grant extension of time for completion of the work. The petitioner further requested the respondent vide letter dated 14.03.2014 that it is not possible for the petitioner to continue with the work till late w.e.f. December, 2013 because of extremely cold weather. The petitioner also requested the respondent to make ad- hoc payment on 11.03.2014 in the chamber of Chief Engineer, however, no payment pursuant to said assurance was made to the petitioner and further the respondent kept on delaying the payment due and payable to him on one pretext or the other.
3.1. It is asserted by the petitioner that a show cause notice dated 21.03.2014 under clause 3 of Contract Agreement sent by the respondent as to why the work awarded to the petitioner be not OMP(Comm)- 35/20 Page 4 of 38 terminated. As per the petitioner, all allegations and reasons made in the said notice were absolutely baseless and false. The petitioner again requested for release of payment vide its letter dated 19.04.2014 wherein the petitioner has informed that it had executed the work to the tune of Rs.67,00,000/- and requested for an ad-hoc payment of Rs.54,00,000/- being 80% of the said amount. The respondent vide its letter dated 25.04.2014 granted extension of time by two months upto 30.06.2014. The respondent in response to letter of petitioner dated 19.04.2014 wrote a letter dated 02.05.2014, wherein the respondent raised frivolous ground for not making payment as requested by petitioner vide letter dated 19.04.2014. The petitioner vide reply dated 12.05.2014 refuted the allegations of delay leveled against it by respondent and gave reasons for the delay in execution of the work and also gave details of all the work which was completed so far. The first RA bill amounting to Rs.93,95,634/- was submitted by the petitioner to the respondent for payment through covering letter dated 20.05.2014. The respondent in response to the reply dated 12.05.2014 had issued a letter dated 09.06.2014 which was further replied through letter dated 20.06.2014 thereby explaining that defects being pointed out have duly been explained to the E.E and S.E in the joint meeting and further requested for release of payment of Rs. 50.0 lakhs. The respondent had issued letter dated 25.08.2014 thereby requesting to restart the work and submit date wise programme. Petitioner has submitted the reply on 05.09.2014 thereby putting the facts as discussed in the meeting held in OMP(Comm)- 35/20 Page 5 of 38 chamber of S.E on 04.09.2014 and further putting the respondent on notice with respect to fact that residents were creating hindrance in execution of work. The petitioner thereafter, has received two letters dated 20.10.2014 for starting the work. The petitioner submitted a detailed reply on 30.10.2014 in office of respondent thereby categorically explaining current status at site which included the hindrances faced by petitioner from local residents and also the non payment of legally payable amount to petitioner inspite of several assurances from office of respondent and other details with respect to Jor Bagh lane was also given.
3.2. The petitioner further asserted that it has received letter dated 14.11.2014 thereby intimating about failure of some samples picked up from the site falling in the 3rd party quality assurance and request was made to scrap out these quantities from the area and relay the same. The petitioner in reply, wrote a letter dated 20.11.2014 by which, he disputed the genuinity of the samples as the samples were alleged to have been picked up from the site inspite of there being a specific request for samples to be picked up in presence of petitioner. Thereafter, petitioner received another letter dated 18.11.2014 wherein inspite of specific request made through letter dated 30.05.2014 for removal of hindrances and without dealing with said hindrance, ar request was made by respondent to start the work. The petitioner again wrote a letter dated 25.11.2014, reiterating the request made through letters dated 30.10.2014 and 20.11.2014. The petitioner thereafter received a OMP(Comm)- 35/20 Page 6 of 38 letter dated 19.12.2014 thereby alleging that petitioner was not adhering to the instructions given by respondent and was further directed not to carry out mastic work as that mastic temperature was not suitable for the same. The petitioner submitted its reply dated 24.12.2014 thereby refuting the contents of aforesaid letter and also intimating that the work was stopped even during day time at time of instructions of AE. The petitioner submitted its letter dated 30.01.2015 thereby giving entire status of work and difficulties faced by it during execution of work to the Chief Engineer of respondent. The petitioner further stated that out of total work by the petitioner to the tune of Rs. 1.30 crores, the payment made to petitioner was only Rs. 25.0 lakhs and there has been only false assurances from officials of respondent department, because of which the flow of work has been hindered, Consequently, resulted in delay in completion of work.
3.3. The petitioner further asserted that inspite of doing the work sincerely and informing the respondent about hindrance at every step, the respondent with ulterior motive had terminated the work awarded to the petitioner vide letter dated 24.02.2015. In the said letter of termination, the respondent has mentioned about third show cause notice dated 29.09.2014, which was never served to the petitioner nor it was enclosed with termination letter. Letters dated 24.02.2015 were also sent to the bank of the petitioner for encashment of FDR dated 05.03.2013 for Rs. 7,75,000/- and encashment of bank guarantee for Rs. 18,54,121/-. Pertinently, OMP(Comm)- 35/20 Page 7 of 38 letter of termination mentions that joint measurement of work to take place on 15.03.2015. The petitioner vide letter dated 03.03.2015, replied to said termination letter wherein all the points were categorically dealt with the petitioner. The respondent did not consider the plea taken by petitioner. The petitioner submitted its final bill amounting to Rs.1,40,65,993/-, through letter dated 23.01.2016 mentioning therein the petitioner does not accept the termination of the work by the respondent and that the final bill submitted by it was without prejudice to its rights and contentions to challenge the said termination before the Court of law. Thereafter, vide written letter dated 25.07.2017 whereby the petitioner acknowledged to have received Rs.50,06,479/- in two installments, the first installment of Rs.48,36,479/- was paid on 02.02.2017 and Rs.1,70,000/- paid on 29.05.2017. The petitioner disputed the withholding of an amount of Rs.37,08,242/- by the respondent on account of approval of EOD and also asked the respondent to release the amount of performance guarantee and interest money deposit forfeited pursuant to the Termination Letter dated 24.02.2015 and other claims. The respondent vide reply dated 19.09.2017 denied the request of the petitioner, thereafter, the petitioner sent a demand notice in accordance with Clause 25 of Agreement dated 09.02.2018 posted on 10.02.2018 which was duly served in the office of Executive Engineer on 12.02.2018. When the Executive Engineer did not reply, the petitioner submitted demand notice dated 08.03.2018 to S.E of the respondent. After completion of notice period, the petitioner sent a demand notice OMP(Comm)- 35/20 Page 8 of 38 dated 11.04.2018 to Chief Engineer of the respondent. The petitioner received a reply dated 18.04.2018 from Executive Engineer denying the claims of the petitioner. The respondent has withheld an amount of Rs. 37,08,242/- on account of pendency of approval of EOD of petitioner. During the pendency of Section 11 of the Act preferred by petitioner, the respondent in utter violation of petition pending before Hon'ble High Court of Delhi was pleased to forfeit the said amount vide letter dated 10.09.2018 on account of approval of extension of time without following any due process of law or giving any notice to petitioner. Hon'ble High Court of Delhi pleased to appoint Ld. Arbitrator to adjudicate upon the dispute vide its order dated 24.09.2018. The petitioner duly replied to the letter of forfeiture of withheld amount vide its letter dated 10.11.2018. The petitioner submitted following claims in its Statement of claim as follows:-
S.No. Details Amount (In Rs.) 1. Withheld Amount 37,08,242/-
2. Performance guarantee forfeited by the 18,54,121/-
department
3. Earnest money forfeited by the 7,75,000/-
department
4. Security Deposit 6,20,295/-
5. Amount not paid after measurement 32,375/-
6. Loss of Profit a 15% of unexecuted 34,52,464/-
amount of work i.e. Rs. 2,30,16,430/-
7. Interest @18% p.a. on the aforesaid 18,79,649/-
amount its respective due date OMP(Comm)- 35/20 Page 9 of 38
8. Interest- Pendentelite and future @18% per annum w.e.f. its due date
9. Arbitration Cost On actual basis a. The fee paid to the DIAC b. The fee paid to the lawyer c. Miscellaneous expenses Total (excluding arbitration cost) 1,23,22,146/-
3.4. The respondent filed Statement of defence before the Ld. Arbitrator.
3.5. The Ld. Arbitrator, after going through the material available on record, dismissed the claim of the petitioner vide impugned award dated 30.11.2019. Aggrieved by this, the petitioner challenged the impugned award on the ground that Ld. Arbitrator has wrongly observed in para 21 of the award that "a reading of entire correspondence between the parties would reveal that delay in execution of subject was solely attributed to the petitioner and not to the respondent". This observation is without considering and appreciating the delay in terms of procedure under Clause 2 r/w Clause 5 of GCC and the milestone given in the Schedule F and internal page 97 of agreement.
3.6. Ld. Arbitrator while adjudicating the possibility of delay in execution of work has not categorized the period, appreciated the cross examination and documents on record and mechanically, OMP(Comm)- 35/20 Page 10 of 38 come to the conclusion that responsibility of all the delay is on the petitioner. The Ld. Arbitrator failed to appreciate the admitted fact that from the date of start i.e. 06.06.2013 (extended to 14.06.2013) to date of completion i.e. 05.12.2013 (extended to 14.12.2013), the delay is attributed to the respondent. Further, Ld. Arbitrator failed to appreciate that respondent had issued show cause notice on 12.11.2013, the reply to which was given by petitioner on 05.12.2013. The respondent has not taken action on this show cause notice after receiving the reply and considering the fact that delay is attributed to the respondent.
3.7. Ld. Arbitrator further failed to appreciate that respondent has issued second show cause notice on 21.03.2014. The petitioner had given reply to the said show cause notice on 12.05.2014. In the said show cause notice, it was mentioned that provisional extension was given upto 30.04.2015 through letter dated 12.03.2014. As contract comes to an end on 05.12.2013 and neither the proportionate period of delay i.e. 06.06.2013 to 14.12.2013 was extended nor provisional extension of time was granted by the respondent prior to 14.12.2013, hence, the contract come to an end by efflux of time and even thereafter, the work was executed by the petitioner, provisional extension was granted time to time that has no legal meaning and neither party has right to invoke any Clause except 25 of GCC for taking any action against each other. The Ld. Arbitrator has failed to appreciate that show cause notice under Clause 3 of the Agreement was given on 29.09.2014 as alleged by the OMP(Comm)- 35/20 Page 11 of 38 respondent as the Contract was terminated on 24.02.2015 by the respondent, when the contract was not alive as it comes to an end on 05.12.2013, therefore, the termination is illegal.
3.8. The petitioner further raised the ground for setting aside impugned award stating that ld. Arbitrator has observed in para 26 of the impugned award that time is not essence of Contract and petitioner is not permitted to take this plea as he has not taken this plea from the date of invocation of arbitration till leading evidence. This is a legal issue which may not be taken in the pleading and even if the party will not raise this issue, the Ld. Arbitrator must consider this legal proposition.
3.9. The next ground taken by the petitioner is that Ld. Arbitrator has failed to appreciate that imposition of penalty through letter dated 10.02.2018 under Clause 2 of GCC by the respondent is concerned, the respondent has passed this order firstly when matter was subjudice before Hon'ble High Court of Delhi for constitution of Arbitral Tribunal. Secondly, this order was passed without issuance of show cause notice. The petitioner had given reply dated 10.11.2018. Admittedly, Clause 25 of the Agreement was invoked by petitioner on 09.09.2018 and the arbitration petition no. 435/18 was filed on 24.05.2018. The petitioner had already explained that delay in execution of work is attributable to the respondent. Therefore, order of levy of compensation is wrong, illegal and non tenable as doctrine of lis pendence applies.
OMP(Comm)- 35/20 Page 12 of 383.10. The petitioner further submitted that Ld. Tribunal has also observed in para 21 of the award that "though the original period for execution of work was six months that is required to be completed by 05.12.2013 but respondent has closed the work after more than a year thereafter, after giving ample time and opportunity to the petitioner to execute the work. It is submitted that the aforesaid observation is without consideration of documents and record and finding of Ld. Arbitrator is perverse and against public policy.
3.11. The Ld. Arbitrator further in para 21 of the impugned award observed that respondent's witness RW-1 Sh. H.P Singh, in answer to question no.23 of his cross examination has testified that balance work left unexecuted by petitioner to be got executed by the respondent by another agency. This statement was recorded in year 2019 and the work was to be completed on 05.12.2019. Since 05.12.2013 till year 2019, the respondent department is not able to even e-tender the left over work which proves that there were hindrances existing since date of start of work till 2019 and that is why, the left over work was not e-tendered by the respondent.
3.12. Ld. Arbitrator failed to appreciate that site order book is not prescribed for recording of hindrances rather, it is for giving the orders to the petitioner regarding defects in the executed work and regarding compliance of certain directions. For recording to the OMP(Comm)- 35/20 Page 13 of 38 hindrances, it is mandatory duty of the respondent to maintain the hindrance register at site which was not maintained in the present work.
3.13. The Ld. Arbitrator has wrongly interpreted the extract of Clause 12 of NIT and page 3 of Agreement regarding inspection of site before submission of quotation by the petitioner or any Contractor in para 21, 22 of the award. The Ld. Arbitrator in para 21, 22 of the impugned award has observed that as the petitioner was experienced contractor, therefore, the contention of petitioner that progress of the work at site was slow due to drain work or because of poor weather conditions is not tenable on facts. If it is so then, what is the use of keeping Clause 5 of GCC and keeping at side the hindrance register. The petitioner on these grounds, submitted that impugned award deserves to be set aside.
4. The respondent on the other hand, filed reply to the petition filed on behalf of petitioner and stated that the petition filed by the petitioner is not maintainable as the petitioner while challenging the arbitral award passed in favour of respondent raised issues or grounds which are not tenable u/s. 34 of the Act and none of the grounds stated by the petitioner in his petition fall within the possible challenges given u/s. 34 of the Act. The petitioner seeks re-appreciation of evidence which is clearly barred by proviso to sub-section 2A of Section 34 of the Act. The petitioner fails to show any specific instances of the possible challenges to the award OMP(Comm)- 35/20 Page 14 of 38 on the ground that it is in conflict with public policy. No ground as to violation of law is stated in the petition and no specific issue relating to principle of natural justice or fair play or public policy is raised in the petition. The petition is filed with an ulterior motive, nefarious design and is a concoction of twisted facts, whereas every aspect has already been duly considered and addressed by the Ld. Arbitrator in the impugned award. All the issues or grounds raised in the petition already dealt with in detail by the Ld. Arbitrator after considering the pleadings and proper appreciation of the evidence on record including the contract between the parties and thus, the petition is nothing but an abuse of process of law.
4.1. It is further submitted that it was specifically agreed between the parties that time was essence of contract and letter of acceptance of tender dated 27.05.2013 provided that the time allowed for carrying out work entered in the Tender (six months) shall be reckoned from 10th day after the issue of this letter. The stipulated date for start of work was 06.06.2014 and stipulated date of completion fo work was 05.12.2013. Ld. Arbitrator has rightly observed after appreciating material on record in para 21 that 'a reading of entire correspondence between the parties on record would reveal that delay in execution of subject work is solely attributable to the claim and not to the respondent'. The Ld. Arbitrator has further rightly observed in para 26 of the award that the issue that the contract came to an end by efflux of time was raised by petitioner at the first time during the course of final OMP(Comm)- 35/20 Page 15 of 38 arguments after he had led his evidence and even otherwise, the said plea was not tenable in view of Clause 5.3 and 5.4 of the Contract. The Ld. Arbitrator has rightly observed in para 28 and para 29 of the award that the contract was legally and validly terminated, strictly as per Clause 3 (a) and 3 (b) of GCC. The ld. Arbitrator further in para 30 and 31 while referring to Hon'ble Apex Court judgment in M/s Mitra Guha Builders (India) Company v/s Oil and Natural Gas Council Limited observed that respondent was entitled under Clause 2 of the Contract for withheld the amount from petitioner RA bills and final bills towards compensation of delay. The respondent further asserted that re-appreciation of evidence is barred by proviso to Sub-Section 2A of Section 34 of the Act. It is further submitted that the Ld. Arbitrator has rightly observed that as per the Contract, the onus of inspecting the site before bidding for any kind of hindrances was upon the petitioner. There have been glaring inconsistencies in the petitioner failing and evidence adduced by petitioner on the point of inspection before bidding the plea of alleged hindrance taken by the petitioner later on seems to be afterthought in view of the fact that total time for completion of work under the Contract was six months.
4.2. It is submitted by respondent that instant petition may be dismissed.
5. I have heard arguments advanced by ld. Counsels for parties OMP(Comm)- 35/20 Page 16 of 38 and gone through the record.
6. First point to be considered in the light of aforesaid submissions made by parties is with regard to scope of Section 34 of the Act. The scope of interference by the court under Section 34 (2) of the Act has been time and again restricted in catena of judgments by Hon'ble Higher courts. Before delving into the judicial decisions, it is relevant to reproduce Section 34 of the Act.
"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 award in accordance with sub-section (2) and sub- section (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 indication 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 contemplated by or not falling within the terms of the submission 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 submitted, 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 OMP(Comm)- 35/20 Page 17 of 38 conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation- I For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India only if -
i) 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 morality or justice.
Explanation 2.- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental 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."
7. Normally, the general principles are that the decision of the Ld. 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 OMP(Comm)- 35/20 Page 18 of 38 not open to the court to sit in appeal over the conclusion of the Ld. Arbitrator. It is not open to the court to set aside a finding of fact arrived at by the Ld. Arbitrator and only grounds on which the award can be set aside are those mentioned in the Act. Where the Ld. arbitrator assigns cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the court in the exercise of the power vested in it. It has been held in catena of judgments that in the proceedings under Section 34 of the Act, the re-appreciation of facts, evidence and interpretation of terms of contract is not permissible, what is permissible if there is a patently illegality apparent on the face of record, award is against public policy or fundamental policy of India.
8. 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 under 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 public policy of India contained in Section 34(2)(b)(ii) of the Arbi- tration Act, 1996, this Court in ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 : held: (SCC pp. 727-28 & 744-45, paras 31 & 74) OMP(Comm)- 35/20 Page 19 of 38
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 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 illegality 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:OMP(Comm)- 35/20 Page 20 of 38
(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 indication 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 contemplated by or not falling within the terms of the O.M.P. (COMM) 413/2019 Page 31 of 37 submission to arbitration, or it con-
tains decisions on matters beyond the scope of the submis- sion 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) failing such agreement, the composition of the Arbitral Tribunal 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 Arbitral Tribunal or illegality of ar-
bitral procedure is that the agreement should not be in con- flict with the provisions of Part I of the Act from which par- ties 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.
OMP(Comm)- 35/20 Page 21 of 38(3) The award could be set aside if it is against the public pol- icy 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 illegal. (4) It could be chal- lenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act.......
9. In the recent judgments, the Hon'ble 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 Engineer- ing & Construction Co. Ltd. vs. National Highways Authority of India Ltd. 2019 SCC OnLine SC 677, the Supreme Court has held as under:-
35. What is clear, therefore, is that the expression public pol-
icy 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 Associate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the Renusagar understanding of this expression. This would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as explained 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 arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be per- mitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be OMP(Comm)- 35/20 Page 22 of 38 grounds of challenge of an award, as is contained in para- graph 30 of Associate Builders (supra).
36. It is important to notice that the ground for interference insofar as it concerns interest of India has since been deleted, and therefore, no longer obtains. Equally, the ground for in- terference on the basis that the award is in conflict with jus- tice or morality is now to be understood as a conflict with the most basic notions of morality or justice. This again would be in line with 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 con- stricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in para- graphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders (supra). Explanation 2 to Section 34(2)(b)(ii) and Explana- tion 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco (supra), as understood in As- sociate Builders (supra), and paragraphs 28 and 29 in partic- ular, is now done away with.
38. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2A), added by the Amendment Act, 2015, to Section
34. Here, there must be patent illegality appearing 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 er- roneous application of the law. In short, what is not sub- sumed within the fundamental 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 ille- gality.
39. Secondly, it is also made clear that re-appreciation of ev- idence, which is what an appellate court is permitted to do, OMP(Comm)- 35/20 Page 23 of 38 cannot be permitted under the ground of patent illegality ap- pearing on the face of the award.
40. To elucidate, paragraph 42.1 of Associate Builders (supra), namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available 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 contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.
41. The change made in Section 28(3) by the Amendment 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 de- cide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrator's view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdic- tion. 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 per- verse, as understood in paragraphs 31 and 32 of Associate Builders (supra), while no longer being a ground for chal- lenge 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. Additionally, 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 perverse.
OMP(Comm)- 35/20 Page 24 of 3810. It was also observed that recently, in Hindustan Construction 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 application 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 Lim- ited. (2008) 16 SCC 128 at paragraph 17.
56. Also, as has been held in the recent decision Ssangyong Engineering & Construction Co. Ltd. v. NHAI 2019 SCC OnLine SC 677, after the 2015 Amendment Act, this Court cannot interfere with an arbitral award on merits. "
11. The main contention of the respondent is that Ld. Arbitrator has considered contract provisions, status of work and circumstances while concluding that delay was on the part of petitioner and therefore, ld. Arbitrator was right in justifying the levy of responsibility by the respondent.
12. In the present case, Ld. Arbitrator in para 17 of the award OMP(Comm)- 35/20 Page 25 of 38 observed that for adjudicating of the claim of petitioner herein, the first and foremost question that requires consideration is whether termination of contract vide letter dated 24.02.2015 under clause 3 GPC (Ex.RW-1/X) is legal & justified. Ld. Arbitrator in para 18 also noted that it also requires consideration as to which of the parties to the contract whether the petitioner or the respondent, was responsible for delay & execution of work awarded by respondent to the petitioner herein relating to re-surfacing of B.K.Dutt Colony Lodhi Road and other colony service roads of area. The Ld. Arbitrator further considered about the reasons as raised by the petitioner and the respondent for delay in timely executing the subject work. The case of the petitioner is that the Ld. Arbitrator while adjudicating the responsibility of delay has not categorized, the period agitated, the cross examination and documents proved on the record and mechanically came to conclusion that the responsibility of the all the delays is on the petitioner. A careful perusal of impugned award shows that the Ld. Arbitrator at the outset noticed that as per the petitioner the subject work could not be completed for the reasons that are hindrance at site due to drainage work and the hindrances caused by local residents of the area; delay in getting job mix formulae; cold weather as an impediment in timely execution of work; delay on the part of respondent in making adhoc payments to the petitioner. Ld. Arbitrator has observed in para 21 of impugned award that there is a dispute between the parties regarding the date on which the petitioner was required to commence the work at site and OMP(Comm)- 35/20 Page 26 of 38 considering that site order book ExR2, the entry made on 14.06.2013 which states that "Today site has been shown and handed over to you for execution of work. You are required to start the work and be completed within time", returned the findings that date of start of work has to be 14.06.2023 and not 06.06.2013. Further while referring to the testimony of petitioner's witnesses and their cross examination observed that it was specifically agreed between the parties that time of completion of subject work mentioned in the tender shall be the essence of contract. While dealing with stand taken by the petitioner that there was hindrance at site due to drainage work, the Ld. Arbitrator observed that from the entry dated 16.08.2013 contained in the site order book Ex-R2 "the drainage work has been completed. Please expedite the performance of work" and further observed that this noting bears the signatures of the petitioner therefore it does not lie in the mouth of petitioner to allege that there was delay caused on this account. Ld. Arbitrator further took note of clause 12 of NIT of contract documents and other clauses to arrive at the conclusion that onus of inspecting the site was upon the petitioner and in terms of contractual provisions, the petitioner is required to be aware about condition prevalent at the site before he bids for the subject work. The Ld. Arbitrator also took note of inconsistencies in the pleadings and the evidence adduced by the petitioner and observed that in para 4 of Statement of Claim, the petitioner has pleaded that he had visited the site after the work was awarded whereas in his cross examination, he deposed that his representative Sh. Ajay OMP(Comm)- 35/20 Page 27 of 38 Gupta had visited the site. However, Sh Ajay Gupta being employee of petitioner when examined as CW2 during cross examination has deposed contrary to the petition on this point. CW2 testified that he went to the Division office from where the tender was called and inquired from Executive Engineer concerned regarding the hindrance thereupon. But he was told that the department will allow visit to the site only to the lowest bidder. Since the petitioner failed to set up the case that the respondent failed to make available the site to the contractor for inspection and the petitioner being a senior contractor, it is beyond apprehension of Tribunal that he would not know about his rights & liabilities under the contract before bidding. The petitioner did not bring any hindrance at site on record before bidding or even on the date of possession of site was handed over to him. Ld. Arbitrator has also considered letter dated 30.07.2013 written by the petitioner to the respondent, whereby he for the very first time pointed out hindrance of drain work going on at the notice of the respondent and observed as under:
"23..... it really sounds that if possession of site as recored in site order book Ex-P2 was given to the claimant on 14.06.2014, why would he remains silent for 1 ½ month thereafter if actually any hindrawnce as alleged by the petitioner herein. Here it shall be relevant to refer to the various timelines provided in the contract, Ex-RW1/X, for stage-wise completion of the subject work. Schedule 'F' at internal page 97 of the contract document in this regard is OMP(Comm)- 35/20 Page 28 of 38 relevant and the same is extracted below:
Sr.No Financial Time allowedAmount to be withdrawn
Progress days[From date ofin case of non
start] achievement of
milestones
1. 1/8th of work1/4th of whole order In the event of non-
order
2. 3/8th of work½ of whole work achieving the necessary order
3. 3/4th of work3/4 th of whole work progress as assessed order
4. Full Full during the running payment. 1% of the tendered value will be withheld for filure of each mile stone.
24. It is seen from the above table that parties have specifically agreed that in the event of various milestones the respondent shall be entitled to withhold an amount equal to 1% of the tendered value from the running payment due to the claimant. There is no cogent explanation from the claimant on record to explain the unusual delay of more than a year in the execution of subject work which stood terminated half way by the respondent on account of poor progress of work on the part of Claimant vide termination letter dated 24.02.2015. The Arbitral Tribunal cannot lose sight of the fact recorded in the site order book Ex-R2 duly signed by representative of both the parties which shows that alleged hindrance of drainage work at site OMP(Comm)- 35/20 Page 29 of 38 came to an end in all respect on 16.08.2013......"
13. The Ld. Arbitrator further considered that there are several notings in site order book Ex-R2 dated 30.09.2013 and 03.10.2013, wherein the petitioner's deficiency were recorded and the respondent requested the petitioner to expedite the work. The Ld. Arbitrator, in this regard also refers to show cause notice dated 21.03.2024 Ex.PW-2/10 and observed that by the time, the said show cause notice was issued, the petitioner had completed 8% of subject work which indicates that there is no intention on the part of the petitioner to complete the work within the extended time limit granted by the respondent till 30.06.2024. Ld. Arbitrator further rejected the contention of the petitioner that there was any default on the part of respondent in making payment to the petitioner under the contract and observed that there is no stipulation for adhoc payment under the contract and the respondent was under no obligation to make any adhoc payment as demanded by the petitioner through various communications on record. The Ld. Arbitrator further referred to the bills as submitted by the petitioner to the respondent and observed that amount levied as compensation for delay on the part of petitioner was deducted from the bills of the petitioner.
14. The above findings of the Ld. Arbitrator show that the Ld. Arbitrator has dealt extensively with the objections raised by the petitioner and the above findings returned by the Ld. Arbitrator OMP(Comm)- 35/20 Page 30 of 38 cannot be interfered for the reason that appreciation of evidence and construction of documents were within the jurisdiction of the Arbitrator.
15. With respect to the plea raised by the petitioner that in view of clause 29.4 of CPWD Manual Work, 2012 the extension of time may be granted before expiry of the date of completion which has not been done in this case, thus the contract came to an end by 05.12.2013 by efflux of time. While dealing with this question, the Ld. Arbitrator observed that this plea is not tenable in view of clause 5.3 & 5.4 of the contract which reads as under:
"5.3 Request for rescheduling of milestone and extension of time, to be eligible for consideration, shall be made by the contractor in writing within fourteeen days of the happening of the event, causing delay on the prescribed from to the authority as indicated in schedule 'F'. The contractor may also, if practiable, indicate in such a request the period for which extension is desired.
"5.4 In any such case, the authority as indicated in schedule 'F' may give a fair and reasonable extension of time and reschedule the milestones for completion of work. Such extension shall be communicated to the contractor by the Engineer-in-charge in writing, within 3 months of the date of receipt of such requet. Non application by the contractor for extension of time shall not be a bar for giving a fair and reasonable extension by the OMP(Comm)- 35/20 Page 31 of 38 indicated in schedule 'F' and this shall be binding on the contractor".
16. Perusal of impugned award and perusal of para 27 of impugned award shows that Ld. Arbitrator observed that admittedly the petitioner herein did not furnish at any point of time fresh schedule for completion of work after extension of time.
17. With respect to claim no. 1, the Ld. Arbitrator observed that ample time was given by the respondent to the petitioner to complete the work and due to breach on the part of the petitioner herein, the contract was terminated. Ld. Arbitrator has further relied upon clause 2 of contract Ex-RW1/H to arrive at the conclusion that respondent was justified in levying compensation and to deduct the same from the payment that became due to the petitioner. The agreement stipulated various conditions which seems to regulate the relationship between the petitioner and respondent. In this regard, it is useful to refer that a contract,being a creature of an agreement between two or more parties, is to be interpreted due to the actual meaning to the work contained in the contract. The explicit terms of a contract are always final word with regard to the intention of the parties. Herein the contract condition provided for payment of daily compensation in the event of such delay, the total amount of compensation cannot exceed 10% of tendered value of the work or to the tendered value of items or group of items of work, which effected period of compensation OMP(Comm)- 35/20 Page 32 of 38 is originally given. It is in this factual scenario, the Ld. Arbitrator has considered the compensation for delay & rejected the claim no.1 of the petitioner. The views of the Ld. Arbitrator is neither impossible or perverse but it a plausible too and there is no infirmity in the arbitral award with regard to claim no.1 of the petitioner.
18. While dealing with the other claims as made by the petitioner against respondent on account of earnest money, security deposit, performance guarantee, the Ld. Arbitrator has interpreted clause 1(4) & Clause 3(a) of GCC which enumerates forclosure in the event of the contract being determined or rescinded for default on the part of petitioner under any of the clauses or provisions of the contract agreement. In the present case, the Arbitral Tribunal has recorded a categorical finding against the petitioner herein that the contract in question was terminated by the respondent on account of default on his part in completing the work within the stipulated time period and even during the extended time period extended by the Respondent from time to time till 30.06.2014. The forfeiture of earnest money, security deposit and performance guarantee by the respondent is strictly in accordance with the contractual provisions referred hereto above and, therefore, the petitioner is held not entitled to any of the claims no.2, 3, & 4 made by him against the respondent.
19. The above shows that there is nothing pleaded by the OMP(Comm)- 35/20 Page 33 of 38 respondent about loss caused to the respondent on account of such delay and termination. Ld. Counsel for petitioner has raised a point that though RW1 in his cross examination has alleged that the balance work left unexecuted by the parties had to get executed by the respondent by engaging another agency. In the impugned award, the Ld. Arbitrator did not discuss about the loss if any suffered by the respondent. Here, it needs to refer Section 73 and 74 of Indian Contract Act, 1872. Section 73 reads as under:
"73. Compensation for loss or damage caused by breach of contract- When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach."
20. Section 74 reads thus:
" 74. Compensation for breach of contract where penalty stipulated for:- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty is stipulated OMP(Comm)- 35/20 Page 34 of 38 for."
21. It is well settled that the words 'loss or damage' in the aforesaid sections would necessarily indicate that the party who complains of breach must have rarely suffered some loss or damage apart from being faced with the mere act of breach of contract. This is because of every breach of contract need not necessarily result in actual loss or damage. Compensation payable under Section 73 and 74 of the Indian Contract Act,1872 is for loss or damage caused by the breach and not on account of mere act of breach. If in any case, the breach has not resulted in or caused or loss or damage to a party, he cannot claim compensation.
22. Further, in Union of India v/s Rampur Distilleries and Chemical Co. Ltd AIR 1973 SC 1098, the Hon'ble Apex Court held that a party to a contract taking security deposit from the other party to ensure due performance of the contract, is not entitled to forfeit the deposit on ground of default when no such loss is caused to him in consequence of such default. When the question is one of forfeiture of security deposit in case of breach of contract, such sum does not ipso facto go to the respondents. If the party complaining is in a position to adduce evidence whereby the court can assess reasonable compensation, then without proof of actual loss, damages will not be awarded and amount mentioned by the contract will be penalty. In such circumstances, it has been held that the security amount is liable to be forfeited.
OMP(Comm)- 35/20 Page 35 of 3823. Further, an identical question of law was under consideration of Hon'ble High Court of Delhi in case of Essban Paints Pvt Ltd v/s Union of India, 2002 (2) 1 ARB LR 51 and the Hon'ble High Court delivering judgment has observed as under:
"2. Learned counsel for the objector has submitted that the Arbitrator took wrong view in holding that the forfeiture of security deposit by the respondent was in the nature of penalty. He relies upon following observations from the judgment of Supreme Court in the case of Maula Bux Vs. Union of India :
"Forfeiture of earnest money under a contract for sale of property- movable or immovable-if 'the amount is reasonable, does not fall within s.74. That has been decided in several cases: Kunwar Chiranjit Singh Vs. Har Swarup AIR 1926 P.C.1.; Roshan Las Vs. The Delhi Cloth and General Mills Company Ltd., Delhi I.L.R. 33 All.166; Muhammad Habibullah Vs. Muhammad Shafi I.L.R. 41 All. 324; Bishan Chand Vs. Radha Kishan Das I.D.19 All.490. These cases are easily explained, for forfeiture of a reasonable amount paid as earnest money does not amount to imposing a penalty. But if forfeiture is of the nature of penalty, s.74 applies. Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty".
3. While there is no quarrel about the aforesaid proposition, what is to be examined in each case is as to whether forfeiture of earnest money is a reasonable pre-estimation of loss in the event of breach or it is in the nature of penalty. In the instant case it is not the case of the objector that the petitioner completely failed to perform the contract which lead the respondent-objector to for feat the money. As per the averments of the respondent, petitioner had partly performed the contract but since he did not complete the execution of the contract, the contract was cancelled and security deposit which was in the form of bank guarantee was forfeited. In the same judgment Supreme Court has held that if a party alleges loss because of breach of contract on the part of other party, it has to prove the OMP(Comm)- 35/20 Page 36 of 38 said loss. Here, in the objections itself the case of the objector is that the petitioner had committed breach of contract because of which the respondent suffered loss. According to the respondent-objector the petitioner did not perform the contract fully. This is borne out from the counter-claims filed by the respondent before the Arbitrator also. When that is the case it was the respondent's obligation to prove the extent of damages suffered because of the alleged breach. The security was furnished by the petitioner for due fulfillment of the contract. If the contract was not performed and there was breach thereof by the petitioner, it was for the respondent to prove the loss/damage suffered because of such breach and to forfeit the security only to the extent of the loss. By failing the same to prove, the petitioner could not justify withholding/forfeiting the security amount. This is the consistent view taken in various cases including in the case of Maula Bux Vs. Union of India (supra) as well as in the case of State of U.P. Vs. Chander Gupta & Co. . I, therefore, do not find any merit in the objections. This application is accordingly dismissed. Judgment in terms of the Award is pronounced. The Award of the Arbitrator is made a rule of the Court."
24. Now applying the abovesaid principles of law to the factual matrix of the present case, it is noted that it was incumbent upon the respondent to prove loss. By failing to prove, the respondent is not entitled for forfeiture of performance guarantee, earnest money and security deposit. That being the position and in view of the settled legal proposition as discussed above, there is patent illegality in the findings given by Ld. Arbitrator while rejecting Claim nos.2, 3 and 4 of the petitioner herein.
25. In view of the aforesaid, the impugned award, to the extent it forfeited earnest money, security deposit and performance guarantee amount in favour of respondent deserves to be set aside under Section 34 (2A) of the Act on the ground that the impugned award is vitiated by a patently illegality appearing on the face of it.
OMP(Comm)- 35/20 Page 37 of 3826. Accordingly, the present petition is disposed off. Parties are left to bear their own costs.
Digitally
27. File be consigned to record room. VINEETA signed by VINEETA GOYAL GOYAL Date:
2025.04.16 17:36:17 +0530 Pronounced in the open (VINEETA GOYAL) Court on 16th April, 2025 District Judge (Commercial)-03 Patiala House Courts New Delhi OMP(Comm)- 35/20 Page 38 of 38