* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 286/1998
% Decided on : 2nd July, 2009
DDA ..... Appellant
Through: Mr. M.K. Singla, Advocate.
versus
M/S MOHAN CONSTRUCTION ..... Respondent
Through: Mr. Sunil K. Mittal and Mr. Kshitij Mittal,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1. Whether the Reporters of the local newspapers be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
J U D G M E N T (ORAL)
MUKUL MUDGAL, J.
1. This appeal arises from a judgment of the learned Single Judge dated 21st May, 1997 affirming the award of the arbitrator dated 7th November, 1987.
2. The appeal relates only to a claim which is for a sum of Rs. 60,224/- arising out of Claim No. 12 for providing brass stays and handles in steel windows. The Contractor‟s claim was based on the premise that the contract did not stipulate the provisions of the brass stays and handles and since the Contractor was required to put the brass stays and handles, the claim, therefore, was made.
3. The learned Arbitrator has dealt with the aforesaid claim as follows:-
" A careful reading of the agreement item of steel windows FAO(OS)286-1998 Page 1 of 3 shows that it does not cover the cost of brass stays and handles. The quantities claimed by the contractor are 3602 stays and 4346 handles. No details in support of these quantities have been furnished by him. He has taken these quantities from the extra items of „oxidising‟ brass handles and stays paid to him. The respondent has stated that the quantity of stays and handles does not exceed beyond 3400. He also as stated that the size of fastener (handle) actually provided is 75 cm as against 100 cm shown in the standard design. In the absence of any other record, I accept the quantity of 3602 „stays‟ as correct. The number of „handles‟ should be the same as „stays‟ since normally one „handle‟ and „stay‟ would be provided for each steel window. On this basis the amount payable to contractor will be:
1) Stays (300 cm Long)
(Item 117 (A), Page 87
DSR 1967) 3602 @ Rs. 8.15 Each Rs. 29,356/-
i) Fasteners (75 mm) 75% rate
At Item 16, Page 87 of
DSR 1967 3602 X 0.75 x 6/20 Rs. 16,749/-
___________
Rs. 46,105/-
___________
Add 47% enhancement under
Clause 12 Rs. 19,319/-
___________
Rs. 60,224/-
___________
The claim is justified for Rs. 60,224/-."
The appeal of the DDA is confined to this claim only. We find no infirmity in the finding of the learned Single Judge which rejected the contention of the DDA that as per Item No. 10.9.5.2 of CPWD Specifications brass stays and handles are part of the specification for the window.
4. Having perused the Award, we find that this plea was not raised before the learned Arbitrator and the same was not even taken up in the objections preferred against the Award. This could not be refuted by the learned counsel for the appellant. FAO(OS)286-1998 Page 2 of 3
5. Consequently, since this plea was not taken up before the learned Arbitrator, it ought not to have been raised before the learned Single Judge. In any case, the learned Single Judge relied upon a judgment in Suit No. 554-A/82 where in somewhat similar circumstances, it was found that the brass fittings to be fixed to the steel windows were not included in description of that item.
6. Mr. Singh, learned counsel for the respondent has urged before us rather vehemently that the claim is covered by Item No. 10.9.5.2 of CPWD Specifications.
7. Even if it were so, the amount involved is so minimal and the fact that Item No. 10.9.5.2 of CPWD Specifications is missing from the pleadings of the DDA inspite of the several opportunities granted, it does not warrant any consideration from this Court.
8. Accordingly, we see no merit in the appeal and the same is dismissed.
MUKUL MUDGAL, J NEERAJ KISHAN KAUL, J JULY 02, 2009 Sb/RS FAO(OS)286-1998 Page 3 of 3