M/S G.D. Tewari & Co. vs Dda

*                THE HIGH COURT OF DELHI AT NEW DELHI

                          %       Judgment delivered on: 14.02.2012

+                    FAO(OS) 183/2005


M/S. G.D. TEWARI & CO.                                   ...APPELLANT


       VERSUS


DDA                                                ...RESPONDENT


Advocates who appeared in this case:
For the Appellant:  Mr. Sandeep Sharma, Advocate
For the Respondent: Mr. Bhupesh Narula, Advocate

CORAM :-
HON'BLE MR JUSTICE SANJAY KISHAN KAUL
HON'BLE MR JUSTICE RAJIV SHAKDHER


SANJAY KISHAN KAUL, J. (ORAL)

1. The respondent/DDA awarded the work to the appellant/contractor on 17.12.1984 in pursuance to a tender of construction of DUs under SF Scheme at Vasant Kunj. As usual, disputes arose between the parties and the disputes were referred for adjudication to the sole arbitration of Mr. K.B. Bali, who made and published his award on 19.05.1995. The award was filed in court and registered as CS(OS) 1381A/1996. The respondent/DDA filed objections under sections 30 and 33 of the Arbitration Act, 1940 which was registered as IA No.12624/1996. The objections have been partly allowed by the impugned order dated 19.04.2005 of the learned Single Judge.

2. We may record that at the time of issuance of notice on 05.07.2005, the grievance of the appellant was confined to only certain claims awarded by the FAO(OS) 183-05 Page 1 of 4 Arbitrator and set aside by the learned Single Judge. Learned counsel for the appellant has also fairly stated before us, that the real controversy is only in respect of sub-heads 12 and 23 of claim no.8 in extra items. Thus, we have to examine these two claims which were allowed by the Arbitrator and set aside by the learned Single Judge.

Sub-head 12 of Claim no.8

3. Sub-head 12 of claim no.8 is for Rs.1,00,033/- on account of the contractor applying water proofing cement paint on sponge surface. The claim was allowed by the learned Arbitrator on the basis of 25% extra quantified for water proofing cement paint being required for sponge finish to be achieved. This was stated to be as per ISI specifications.

4. The learned Single Judge has reproduced the relevant clause of the works contract in para no.52. Serial No.9.4 of the specification dealing with this aspect reads as under :-

"15mm thick cement plaster 1.5 (1 cement: 5 of coarse sand) finished rough with sponge."

5. The learned Single Judge proceeded to set aside the award of this amount on account of the fact that if the contractor was required to give a finish with sponge surface, all consequences arising therefrom would form a part of the contract price and thus could not be awarded as extra items.

6. We are in complete agreement with the view taken by the learned Single Judge. It is quite obvious that sponge surface is required as per the specifications. If that be so, then there cannot be any extra charges for carrying out what is already included in the job work.

Sub-head 23 of Claim no.8

7. The other item arising from sub head 23 of claim no.8 is for Rs.80,000/- as awarded by the Arbitrator. This claim was on account of extra work for straightening and cutting the reinforcement steel bars to carry out the work against item no.3.7 of the contract. The relevant item reads as under :-

"Reinforcement for RCC work including bending, binding and placing in position complete

(a). Mild steel & medium tensile steel bars

(b). Cold twisted bars."

8. The Arbitrator found that straightening and cutting was not included within the scope of specifications as per the aforesaid clause and thus awarded the amount. The Arbitrator noticed that the appellant in terms of its letter Exhibit C-28 claimed for straightening an amount of Rs.80,000/- which being extra work was not included in agreement i.e., item no.3.7. The reasoning of the learned Single Judge, however, based on the discussion of the legal principle enunciated in various judgments qua the issue of straightening and cutting was that no claim would be maintainable on this account unless the contractor had put the respondent to notice in this behalf. The fact that on legal principle discussed in paras 86 to 91 of the impugned order there is no quibble, is a position accepted by learned counsels for both parties.

9. However, after recording the aforesaid legal principle, the learned Single Judge proceeded to deny this claim to the appellant by recording in para 92 that no evidence had been pointed out of the contractor having written to the DDA when the work was on, that he would be making a claim for straightening of bent up steel bars issued in coils, as an extra item. Learned FAO(OS) 183-05 Page 3 of 4 counsel for the appellant submits that the same is contrary to record as is apparent from the discussion in the award while referring to Exhibit C-28.

10. Learned counsel for the respondent does not dispute the factum of the aforesaid letter. In view thereof, it appears that Exhibit C-28 noticed in the award appears to have escaped the attention of the learned Single Judge, and thus, the appellant is entitled to a sum of Rs.80,000/- as awarded by the learned Arbitrator.

11. No other claim is pressed before us. The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs.

SANJAY KISHAN KAUL,J RAJIV SHAKDHER, J FEBRUARY 14, 2012 yg FAO(OS) 183-05 Page 4 of 4