* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No. 61 of 2000
% Decided on: 16th July, 2009
D.D.A. ..... Appellant
Through: Mr. Bhupesh Narula, Advocate.
versus
M/S KOCHAR CONSTRUCTION WORKS ..... Respondent
Through: Mr. R. Rajappan, Advocate.
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? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported in the Digest? No
J U D G M E N T (ORAL)
MUKUL MUDGAL, J.
1. This appeal challenges the judgment dated 16th December, 1999 passed by the learned Single Judge. During the course of the hearing, we found that on all claims except claim No.8, the learned Single Judge had affirmed the factual findings of the Arbitrator. The counsel for the appellants has also very fairly stated that he was limiting his challenge to the findings on claim No.8.
FAO(OS) 61/2000 Page 1 of 6
2. Thus, the only issue in this appeal is with regard to claim No. 8 by seeking recourse to clause 10 and general clause 1 of Specifications and Conditions of the said contract which read as under:-
"Clause 10 Stores supplied by Delhi Development Authority. If the specifications or schedule or items provided for the use of any special materials to be supplied from Engineer-in- Charge‟s stores or it is required that the contractor shall use certain stores to be provided by the Engineer-in-Charge as shown in the schedule of materials hereto annexed the contractor shall be bound to procure and shall be supplied such materials and stores as are from time to time required to be used by him for the purposes of the contractor only, and the value of the full quantity of materials and stores so supplied at the rates specified in the said schedule of materials may be set off or deducted from any sums then due, or thereafter to become due to the contractor under the contract, or other-wise or against or from the security deposit or the proceeds or sale thereof if the same is held in Government securities, the same or a sufficient portion thereof being in this case sold for the purpose. All materials so supplied to the contractor shall remain the absolute property of Delhi Development Authority and shall not be removed on any account from site of the work, all shall be at all times open to inspection by the Engineer-in- Charge. Any such materials remaining unused and in perfectly good condition at the time of the completion or termination of the contract as shall be returned to the Engineer-In-Charge at a place directed by him, by a notice in writing under his hand, if he shall so require but the FAO(OS) 61/2000 Page 2 of 6 contractor shall not be entitled to return any such materials unless with such consent, and shall have no claim for compensation on account of any such materials so supplied to him as aforesaid not being used by him or for any wastage in or damage to any such materials. Provided that the contractor shall in no case be entitled to any compensation or damages on account of any delay in supply or on supply thereof all or any such materials and stores. Provided further that the contractor shall be bound to execute the entire work if the materials are supplied by the Delhi Development Authority within the scheduled time for completion of the work plus 50 per cent thereof (scheduled time plus 6 months if the time of completion of the work exceeds 12 months) but if a part only of the materials has been supplied within the aforesaid period then the contractor shall be bound to do so much of the work as may be possible with the materials and stores supplied in the aforesaid period. For the completion of the rest of the work the contractor shall be entitled to such extension of time as may be determined by the Engineer-in- Charge whose decision in this regard shall be final.
SPECIFICATIONS AND CONDITIONS GENERAL
1. The contractor must get acquainted with the proposed site for the works and study specifications and conditions carefully before tendering. The work shall be executed as per programme approved by the Engineer-in- Charge. If part of site is not available for any reason or there is some un-avoidable delay in supply of materials stipulated by the Department, the programme of construction shall be modified accordingly and the contractor shall have no claim for any extras or FAO(OS) 61/2000 Page 3 of 6 compensation on this account."
3. We have gone through the award and the findings noted by the learned Single Judge in the impugned judgment and we find that clause 10 and the general clause 1 of the Specifications and Conditions were not gone into.
4. Mr. Rajappan, learned counsel appearing on behalf of the respondent has stated that the delay was not only on account of grounds covered under the aforementioned clauses but it was also on account of delay in supply of structural drawings and other grounds which were not covered by either of the two clauses i.e. clause 10 and general clause 1 referred to above.
5. In support of his plea, learned counsel for the appellant has relied upon two judgments M/s Republic Construction Co. Vs. DDA of this Court (decided on 13th July, 2009) and Steel Authority of India Limited vs. J.C. Budharaja, Government and Mining Contractor, reported in AIR 1999 SC 3275 of the Apex Court to submit that excepted matters under clause 10 and general clause 1 of the Specifications and Conditions cannot be gone into and any compensation awarded thereon cannot be sustained.
6. However, we have noted that the discussion of the FAO(OS) 61/2000 Page 4 of 6 Arbitrator qua claim No.8 was not only in respect of delay in supply of materials and rise in labour charges which were barred under Clause 10 and Specification 1 but also included the claim due to delay in supply of structural drawings and other grounds which delays and the claim based thereon were not barred by the above two conditions of the contract. However, since the arbitrator awarded a lump sum for all the facets of claim No.8 without segregating the award on this claim item wise, it is not possible to set aside part of claim No.8. Accordingly, insofar as claim No. 8 is concerned, we set aside the award. The respondent, in the meanwhile, had recovered the amount of the award except a sum of Rs. 50,000/- deposited in this Court. The refund of the said sum received by the respondent shall depend upon adjudication of claim No. 8 by the Arbitrator to be appointed afresh by the Delhi Development Authority (for short „DDA‟). Accordingly, DDA shall appoint an Arbitrator not later than 4th August, 2009. The parties shall appear before the said Arbitrator on 11th August, 2009 at 4.00 p.m. or any other date found suitable by the parties and the Arbitrator but not later than one week from 11th August, 2009. The Arbitrator, on existing pleadings, shall decide claim No. 8 as per the order of this Court not later than sixty days from the first date of hearing. FAO(OS) 61/2000 Page 5 of 6 The record of the proceedings shall be sent to the Arbitrator to be appointed afresh by the DDA and the name of the Arbitrator shall be indicated by the learned counsel for the DDA to the Registry of this Court.
7. With the above observations, the present appeal stands disposed of while affirming the award on all claims except claim No.8. The award qua claim No.8 by the freshly appointed Arbitrator may be assailed according to law by the aggrieved party.
MUKUL MUDGAL (JUDGE) NEERAJ KISHAN KAUL (JUDGE) JULY 16, 2009 sb FAO(OS) 61/2000 Page 6 of 6