Himachal Pradesh High Court
M/S Royal Deep Construction Pvt. Ltd vs Union Of India & Ors on 24 November, 2022
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.5321 of 2022
Decided on: 24th November, 2022
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M/s Royal Deep Construction Pvt. Ltd. ... Petitioner
Versus
Union of India & Ors. ...Respondents
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Coram
Hon'ble Mr. Justice A. A. Sayed, Chief Justice
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
1
Whether approved for reporting?
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For the petitioner: Mr. Janesh Mahajan, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor
General of India, for respondent No.1.
Ms. Ritta Goswami, Additional
Advocate General, for respondent Nos.
2 to 4.
A. A. Sayed, Chief Justice (Oral)
The petitioner was awarded work of construction on NH 503A from KM 0/00 to 15/300 for strengthening including Improvement of Road Safety by construction of R/Wall, B/Wall, Edge Wall, Berms, Parapets at Selected Reaches, Double W Beam, Crash Barrier (Single Side) U & V Shape Drains and Providing /Fixing of Tubular Type Retro-Reflective Signage and Gantries 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/11/2022 20:31:55 :::CIS -2-Package No. EPC-11/2019, by respondent No.1-Union of India through Secretary MoRT&H to respondent No.2-Chief Engineer (NH) HPPWD, Shimla.
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2. It is not in dispute that the aforesaid work of construction of NH 503A has been completed and completion certificate was issued by the Chief-cum-Executive Engineer, NH Division, HPPWD Hamirpur, H.P. It is the case of the petitioner that despite having completed the work as per the contract, an amount of Rs.1,68,71,768/- has not been released by the respondents.
3. In the affidavit-in-reply filed by the Superintending Engineer, National Highway Circle, HPPWD Shahpur, in para-5, it is stated as follows: -
"5. That the completion certificate issued by the respondent department as the work has been completed in terms of road length. But there is mention about minimum quantity for various components also in Schedule-B of the contract agreement, which has not been achieved by the petitioner, so initial submitted final bill is not proper."
4. In the affidavit-in-reply filed by the Regional Officer, MoRT&H, Government of India, in para-5, it is stated as under: -
"5. That State PWD has submitted the bill for the instant work that enclosing therewith the completion certificate. After examining the bill, it was noticed that the bill submitted was not in line with deliverables/scope of the work defined in the schedule B of the agreement and hence the payment agreement and hence the payment processed is ::: Downloaded on - 25/11/2022 20:31:55 :::CIS -3- not as per actual work executed. There is reduction in quantities of Retaining wall, edge wall, crash barrier, tack coat. DBM, BC, thermoplastic paint etc. As per actual execution of items when compared with the scope defined .
in the schedule B. in this regard, State PWD was requested that payment processed may be modified accordingly as per actual work executed at site viz-a-viz schedule B and other provisions of the contract agreement."
5. We have heard learned counsel for the petitioner, learned Deputy Solicitor General of India and learned Additional Advocate General. It is not in dispute that the petitioner has been issued completion certificate by the Authority Engineer-cum-
Executive Engineer, National Highway Division, HPPWD, Hamirpur, annexed at Annexure P-3 to the petition, which reads as under: -
"1. .........................
2. It is certified that, in terms of the aforesaid agreement, all works forming part of Project Highway have been completed and the Project Highway is hereby declared fit for entry into operation on this the 15th day of November, 2021 schedule Completed date for which was the 19th day of November, 2021."
6. There is also stage payment certificate issued by the Authority Engineer-cum-Executive Engineer, National Highways Division, HPPWD, Hamirpur, which reads as follows: -
"It is certified that the 10th & Final bill for the above named work for up to date amount of Rs.19,26,44,229/- and since previous amount (of this bill) Rs.1,68,71,768/-::: Downloaded on - 25/11/2022 20:31:55 :::CIS -4-
for work done up to 15.11.2021. As per proposed mile stone, 4th & final milestone of Rs.1933.00 lakh for has been achieved on 15.11.2021 which is targeted to be achieved up to 19.11.2021."
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7. In the teeth of the aforesaid certificates, prima facie, we find it difficult to accept the case of the respondents that the final bill is not proper, particularly when this contention is raised for the first time in the affidavit-in-reply.
8. In the facts and circumstances, we direct respondent No.1-Secretary MoRT&H to deposit the aforesaid amount of Rs.1,68,71,768/- in this Court within three weeks from today. The petitioner shall be entitled to withdraw 50% of the amount from the aforesaid deposit made by the respondents subject to his filing a written undertaking in this Court that in the event the petitioner is directed to return the aforesaid amount by the proposed Arbitrator, the same shall be re-deposited immediately in this Court. It is made clear that in the event of breach of the undertaking, the petitioner would be liable for action under the Competent of Courts Act.
Registry to invest the amount in a fixed deposit in a Nationalized Bank.
9. In deference to the suggestion of this Court and in view of the fact that Article 26 of the Contract Agreement provides for ::: Downloaded on - 25/11/2022 20:31:55 :::CIS -5- arbitration under the Arbitration and Conciliation Act, 1996, learned counsel for the parties are agreed for appointment of Shri S.K. Sharda Chief Engineer(Retired), HPPWD, as a sole Arbitrator for .
adjudication of the disputes between the parties.
10. Apart from the directions in para-8 of this order, we issue the following directions: -
(i) Shri S.K. Sharda, Chief Engineer (Retd.) is appointed as sole Arbitrator to adjudicate the disputes between the parties under the Contract Agreement;
(ii) The learned Arbitrator, before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Registrar (Judicial) of Court, to be placed on record of this petition, a copy whereof be forwarded to the parties;
(iii) The parties shall appear before the prospective Arbitrator on a date which may be fixed by the learned Arbitrator, not later than three weeks from the date of receipt of copy of this order by him.::: Downloaded on - 25/11/2022 20:31:55 :::CIS -6-
(iv) The fees payable to the Arbitral Tribunal shall be as prescribed in the Fourth Schedule appended to the Arbitration and Conciliation Act, 1996;
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(v) Office to forward a copy of this order to the learned Arbitrator on the following address: -
"Shri S.K.Sharda Chief Engineer(Retd.), HPPWD, R/o Vatsalyam, Lower Dudhli, Post Office Bharari, Shimla, H.P."
11. We request the learned Arbitrator to decide the disputes expeditiously and preferably within six months from the date of appearance of the parties before him. We make it clear that the learned Arbitrator shall be entitled to issue appropriate directions to the petitioner to re-deposit the amount or part thereof in this Court as also directions for withdrawal of the amount(s) deposited in this Court by respondent No.1.
12. The writ petition to stand disposed of in the above terms, so also the pending miscellaneous application(s), if any.
(A.A. Sayed)
Chief Justice
(Jyotsna Rewal Dua)
November 24, 2022 Judge
R.Atal
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