Delhi District Court
M/S B. Esskay Construction Co vs Delhi Development Authority on 20 September, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE05 :NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI.
Arbt. No.1121/2017 (Ten Years Old Case)
In the matter of:
M/s B. Esskay Construction Co.,
2C/35, New Rohtak Road,
New Delhi ..................Petitioner
Versus
Delhi Development Authority
Through its ViceChairman,
Vikas Sadan, INA Office Complex,
New Delhi ..................Respondent
JUDGMENT:
1. Petitioner filed a petition u/S 14, 17 & 31 of the Arbitration Act, 1940 before the High Court of Delhi (where the petition was earlier pending but was transferred to this court on account of change in pecuniary jurisdiction) for making the award dated 30.09.2008 Rule of the Court.
2. RespondentDDA filed the objectionpetition u/S 30/33 of the Arbitration Act, 1940 praying therein that the impugned award be set aside.
3. Briefly stating, objector/respondent had invited tenders in respect of the construction of 1200 MIG Houses in pocket GH14, Paschim Vihar, Delhi as well as construction of Arbt. No.1121/2017 M/s B. Esskay Construction Co. Vs. DDA & Ors. Page No.1 of 5 160 MIG Houses GroupV. The said tender was accepted and the work was awarded to petitioner. Consequent on a dispute, an arbitrator was appointed by the High Court of Delhi in Suit No.CS(OS) No.1573/2006 vide order dated 26.02.2007. The Ld. Arbitrator passed the award dated 30.09.2008 and had awarded the amount in respect of claim no.8(D), 8(vii), 9 & 11 which are being challenged in the present objection petition by respondent. The rest of the award has been accepted by the objector/respondent.
4. The objector/respondent has challenged the impugned award on the following grounds:
(a) that the award passed by the Ld. Arbitrator is against the clauses of the agreement, CPWD Specifications;
(b) that in respect of claim no.8(D), no amount is payable;
(c) that the agreement item no.3.16 pertains to groove in RCC Projections only and not in the RCC/Brick work with respect to internal walls. Hence, this amount is not payable;
(d) that no claim in respect of claim no.8(vii) is payable as the period of one year expired on 25.05.1989 and by that time 95% of the flats stood already allotted. Hence, the claimant is not entitled to cost of deployment of watch and ward;
(e) that as per clause 17(B) of the agreement, the maintenance period is for one year but the Ld. Arbitrator has Arbt. No.1121/2017 M/s B. Esskay Construction Co. Vs. DDA & Ors. Page No.2 of 5 taken only six months;
(f) that no claim pertaining to cost of deployment of watch and ward was referred to Ld. Arbitrator;
(g) that all overheads covered within the agreement were paid to the claimant. The claimant had also given an undertaking on 03.12.1987 in this regard;
(h) that the Ld. Arbitrator has not considered the letters dated 06.10.1987 and 26.04.1985;
(i) that the objector has already paid the amount under clause 10(CC) in the agreement;
(j) that the award is silent about the date from which the claim for interest shall start.
5. The petitioner has filed reply to the objections and has contested the same.
6. Objector/respondent has filed rejoinder and has reiterated the contents of the objections.
7. I have heard Sh. Bhavesh Kumar Sharma, ld. Counsel for the petitioner and Ms. Promila Kapoor, ld. Counsel for the objector. Ld. Counsel for the petitioner has contended that there is no error apparent on the face of the record. The award be made Rule of the Court. On the other hand, ld. Counsel for the objector/respondent has contended that no amount is payable with respect to claim no.8(D), 8(vii), 9 & 11 of the award.
8. I have gone through the file. Claim no.8(D) is with Arbt. No.1121/2017 M/s B. Esskay Construction Co. Vs. DDA & Ors. Page No.3 of 5 respect to providing groove in internal plaster where ceiling and brick work meet. Ld. Arbitrator has rightly held that no provision exists in CPWD Specification 1977 as it does not contemplate groove in cement plaster where ceiling and brick work meet. As per agreement (item 3.16), the petitioner is entitled to extra payment for groove plaster. There is no error apparent on the face of the record in this respect in the award passed by the Ld. Arbitrator.
9. So far as claim no.8(vii) regarding cost of deployment of watch and ward is concerned, on completion of the work on 26.05.1988 the dwelling units were to be passed over to the respondent. Respondent did not take the possession till 28.03.1989 which led the petitioner to maintain watch and ward of the dwelling units for a period of ten months. The petitioner incurred the expenses for the same which the objector is bound to pay. Thus, there is no error apparent in the award passed by the Ld. Arbitrator on this claim.
10. The defect liability period as per clause 17 of the agreement is six months. Clause 17B contemplates only for leakage of roofs for one year or two rainy seasons (ending October), whichever is later. Thus, clause 17(B) is not applicable. The objection in this respect is, therefore, misconceived and is rejected.
11. The Ld. Arbitrator, on the basis of the evidence adduced before him, came to the conclusion that it is case of breach and it is conclusively proved that the objector/respondent failed to discharge its obligation. The Ld. Arbitrator found the claim of Rs.2,29,606/ to Arbt. No.1121/2017 M/s B. Esskay Construction Co. Vs. DDA & Ors. Page No.4 of 5 be reasonable. There is no apparent error on the face of the record qua this objection (claim no.9).
12. So far as claim no.11 (interest) is concerned, Ld. Arbitrator allowed the simple interest @ 12% p.a. on the amounts withheld by the objector/respondent. The award passed by Ld. Arbitrator is from 1992. Thus, the simple interest @ 12% p.a. was impliedly granted by the Ld. Arbitrator from the date of invocation of the arbitration i.e. 09.02.1999 till its realization. The objection of the objector in this regard has no merit. Hence, the same is rejected.
13. Considering the facts and circumstances of this case, the objections of the objector are dismissed. The impugned award is made Rule of Court and a decree is hereby passed in terms of the said award dated 30.09.2008 which shall form part of the decree. File be consigned to Record Room after due compliance.
Digitally signed byPRAVEEN KUMAR PRAVEEN KUMAR Date: 2018.09.21 02:11:30 +0530 Dictated and announced in (PRAVEEN KUMAR) open court today i.e. on 20.09.2018. Additional District Judge05, NDD,Patiala House Courts, New Delhi. (R) Arbt. No.1121/2017 M/s B. Esskay Construction Co. Vs. DDA & Ors. Page No.5 of 5