Bombay High Court
Mahindra Lifespace Developers ... vs Biecrete Project Private Limited on 27 November, 2012
Bench: Anoop V.Mohta
ssm 1 arbp406.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 406 OF 2009
Mahindra Lifespace Developers Limited,
A Company incorporated under the
Provisions of the Companies Act, 1956,
Having its registered office at
5th Floor, Mahindra Towers, Worli,
Mumbai-400 018. .....Petitioners.
Vs.
Biecrete Project Private Limited,
A Company incorporated under the
Provisions of the Companies Act, 1956,
Having its registered office at
10, Gulam Hussain Mansion,
Bhardawadi Lane, S.V. Road,
Andheri (West), Mumbai-400 058. ....Respondents.
---
Mr. Percy Modi, Senior Counsel a/w Mr. Nemil a/w Samindra
Surve a/w Mr. Nirav Shah i/by M/s. Little & Co. for the
Petitioners.
Mr. Suresh Gupte a/w Mr. Devurat Dhankar Singh i/by Mr.
Sudheer S. Phadke for the Respondents.
---
CORAM : ANOOP V. MOHTA, J.
JUDGMENT RESERVED ON : 22 OCTOBER, 2012
JUDGMENT PRONOUNCED ON : 27 NOVEMBER,2012
ORAL JUDGMENT :-
1 The Petitioners original-Respondents have
challenged award dated 20 February 2009, passed by the sole
ssm 2 arbp406.09
Arbitral Tribunal, under Section 34 of the Arbitration and
Conciliation Act, 1996 (for short, the Arbitration Act).
2 The conclusion of the final award is as under:-
"1 As a Sole Arbitral Tribunal I have jurisdiction
to try, entertain and decide all the disputes
arising in this matter.
2 The Claims of the Claimants are not barred
by limitation.
3 The Counter Claims of the Respondents are
barred by limitation.
4 The Claimants have proved their claim to the
extent of Rs.64,73,533/- for the work of
Phase I and Phase II.
5 As the Claimants have restricted their claim
to the extent to the security deposit and
retention money to the tune of
Rs.44,75,590/- for Phase I work. I allow
the claim to that extent only.
6 The Claimants are further entitled to receive
Rs.10,24,553/- for the work under Phase-II.
7 In the aforesaid discussion, I allow the claim
of the Claimants partly by holding their
entitlement to receive Rs.55,00,143/- from
the Respondents with interest @ 9% p.a. from
the date of invocation of the arbitration i.e.
9.3.2005 till payment or realisation. I have
dismissed the whole counter claim for the
reasons recorded hereinabove.
Parties to bear their own costs."
3 The basic facts as per the Petitioners are as under:-
The Petitioners Company is in the business of
development of immovable property and sale of flats/premises.
ssm 3 arbp406.09
The project in question was called "Mahindra Gardens" at
Goregaon. The Petitioners invited tenders for a construction of
super structure and sub-structure of buildings. By Letter of
Intent (for short, LOI) dated 27 January 1999, the Respondents'
tender was accepted. On 13 May 1999, the Agreement
executed between the parties for Phase-I. Clause 2 expressly
incorporates the terms of tender, drawings, conditions of
contract, specifications, BOQ and LOI.
4 The Respondents did the phase I construction work,
but delayed the same. The Respondents were awarded three
fresh contracts for "Phase-II" also :-
a) Work order dated 23 December 1999 for B3 - B4
Sub-structure.
b) Work order dated 13 April 2000 for A1 sub and
super structure.
c) Work order dated 10 May 2000 for B3 - B4 Super
structure.
5 The Respondents abandoned Phase II without
completing it. The Respondents only cast one slab of B4 and
two slabs of B3 out of 8 slabs each as required under the work
order. The Petitioners had to get the work completed through
other contractors.
6 The BMC issued occupation Certificates (for short,
"OC"):-
a) On 14 September 2000, for A2 - A3 (Phase I)
b) On 29 June 2000, for B1-B2 (Phase I)
c) On 13 November 2001 for A1, B3 and B4 (Phase II).
ssm 4 arbp406.09
On 23 July 2001, Phase I had been completed in stipulated
time.
7 The Respondents allege that the last payment by the
Petitioners was on 18 January 2002. All the work was
completed in 2001 the payment should have been made by the
end of the 2001. On 9 March 2005, the Respondents invoked
the Arbitration clause. On 20 January 2006, the Respondents
filed a Statement of claim for Rs.46.5 lakhs for phase I and
Rs.22.5 lakhs for Phase II, as balance due. The last and final
Certificates of payment for phase I is dated 14 October 2000
and for Phase II the last Certificates of Payment is dated 25
February 2002.
8 The Petitioners filed an application to decide a point
of limitation as a preliminary issue. The Respondents filed its
reply. The Petitioners filed rejoinder. The plea of limitation
was rejected by order dated 17.7.2006, holding inter alia in
para 6 that the Respondents would confine its claim only to
refund of security deposit and retention money, (since the right
to claim the same would be after the defect liability period of
one year after the completion of the construction.)
9 On 28 September 2006, the Petitioners' Petition
against the above order was disposed of by this Court by
holding that the Petitioners would be at liberty to challenge the
ssm 5 arbp406.09
same along with the final award. On 17 October 2006, the
Petitioners filed their Written Statement and denied any liability
to the Respondents and also counter claimed for the delay,
defective and abandonment of work (Rs.76.5 lakhs + Rs.41.6
lakhs + Rs. 50 lakhs). On 10 November 2006, the Respondents
filed rejoinder and reply to counter claim. The evidence was
led by both the parties. The Written submissions were also
filed. The award was on 20 February 2009 and corrected on 24
March, 2009.
Following three claims have been considered and
awarded by the Arbitral Tribunal-
(a) Claim for Phase I,
(b) Claim for Phase-II, and
(c) Interest.
11 The counter-claim of the Petitioners was rejected.
The main challenge and submissions made by the learned
counsel appearing for the parties are on the following points.
i) Bar of Limitation
ii) Lack of jurisdiction.
iii) Challenge to claim for phase-I & II Work on merits.
iv) Challenge to rejection of counter-claim on merits.
BAR OF LIMITATION:-
12 The cause of action accrued for Phase-I on
completion of work by Occupation Certificate issued by MCGM
on 14 September 2000 for Building Nos. A-2 and A-3 and on 29
ssm 6 arbp406.09
June 2000 for Building Nos. B1 and B2 (Phase-1.) The cause of
action accrued for Phase-II on completion of work on 13
November 2001 (for Building Nos. A1, B3 and B4, Phase-II).
13 The Arbitration clause was invoked on 9 March
2005, admittedly, after more than 3 years. The learned
Arbitrator has held and considered 23 July 2001 as date of
completion of Phase I work and 31 March 2002 as date of
completion of Phase II work. The amount of Rs.44,75,590/- so
retained was payable on 23 July 2001, within one year of
completion of the work as per the agreement. The Arbitration
clause was invoked on 9 March 2005 and restricted the claims.
Phase-II work was completed on 31 March 2002, subject to the
defect liability period, expired on 31 March 2003. The Claim so
filed on 9 March 2005 was in time as per the Arbitrator.
14 Even as per Section 19 of the Limitation Act, 1963,
(for short, "the Limitation Act"), the learned Arbitrator has
accepted the Respondents' case of part payments both in respect
of Phase-I and Phase-II, within the period of limitation. The
same were on 1 November 2002 and 6 December 2002.
15 There is no denial to the payment made by the
Petitioners to the third parties on behalf of the Respondents'
debt. From time to time, as recorded, such payments were
made directly to the third person on behalf of the Respondents
ssm 7 arbp406.09
and the amount was debited and adjusted in the account of
Respondents, based upon the various certificates. The
Respondents were also regularly issued such authorization
letters to the Petitioners to make such payment. The learned
Arbitrator has accepted this evidence as it was permissible mode
and practice between the parties to make the payment on
account of Respondents' debt. In my view, this is sufficient to
cover the case of acknowledgment of payment in writing,
basically when the payment was made by the Petitioners
directly and debited the same from the account of Respondents'
debts. The adopted practice and the receipt and the admission
of payment itself, falls within the ambit of "acknowledgement of
payment in writing". The evidence so led by the parties through
their respective witnesses (Mr. R.L. Gandhi, for the Petitioners)
supports the payment from time to time under the specific
vouchers.
16 This payment and acknowledgement, in my view,
falls within the ambit of Section 19 as elaborated by the
Supreme Court in Sant Lal Vs. Kamala Prasad 1 . Therefore, I
am declined to accept the contention raised by the learned
counsel appearing for the Petitioners that, this payment was not
on account of debt and not by the person liable to pay the debt
and there was no acknowledgement of the payment in
handwriting of or signed by the payer. The material so
appreciated by the Arbitral Tribunal in this regard in no way can
1 AIR 1951 S.C. 477
ssm 8 arbp406.09
be stated to be contrary to the law and/or perverse. It is well
within the framework of law and the record. Therefore, taking
overall view of the reasonings given, based upon the material
placed on record, there is no case made out to interfere with the
award on this ground.
JURISDICTION
17 The terms and conditions including the Arbitration
clause for Phase-I work, in the facts and circumstances, in my
view, also extended for phase-II work in view of the work order
dated 13 April 2000 itself, though there was no specific
incorporation of the entire contract terms. All terms and
conditions in the tender form is part of LOI. Therefore, the
corporation of the words "All other terms and conditions shall
remain the same as mentioned in LOI dated 27 January 1999"
itself make the position very clear and so also the understanding
between the parties. This is a commercial agreement. The
contention of the work, whichever the nature, but if based upon
the same terms and conditions, I am inclined to observe that
there was Arbitration clause to resolve and settle the dispute
between the parties. Admittedly, the Chief Justice of this Court
has appointed the Arbitrator and the matter proceeded before
the sole Arbitrator pursuance to the order. By that time all the
disputes referring to all these phases and related aspects had
been arose between the parties. (M.R.Engineers and
Contractors Private Limited Vs. Som Datt Builders Limited) 2
2 (2009) 7 SCC 696
ssm 9 arbp406.09
18 The learned Arbitrator, therefore, based upon the
material, as well as the position of law, right in observing that
the intention of the parties was to incorporate the general
conditions of the contract including the Arbitration clause.
Merely because the LOI was not part of the record that itself
cannot be the reason to overlook the intention and the
agreement between the parties, specifically when there is no
denial from the Petitioners' side that there is no Arbitration
clause in the LOI. I am not inclined to accept the submission
of the learned counsel appearing for the Petitioners that
Agreement dated 13 May 1999 was for four specific buildings
and not for remaining different buildings and therefore, there is
no question of extension of same terms and conditions. The
admitted position on record including the correspondences so
referred and relied by the parties itself sufficient to disregard
the submission of the Petitioners on this count also. The
Petitioners ought to have proved the contrary and in support of
their submission that there was no such terms and conditions
and/or Arbitration clause in the first agreement itself. They
failed to produce the LOI of the year 1999 and therefore, cannot
be permitted to say that as the LOI was not on record, therefore,
there was no question of extending the Arbitration Clause in
such fashion to resolve the dispute about the remaining and
subsequent works. In such composite matter, this submission
itself is contradictory and demolishes the case of the Petitioners,
ssm 10 arbp406.09
when there is no denial to the existence of Arbitration
Agreement/clause in the LOI. I am inclined to observe, in the
present facts and circumstances and in view of the findings
given by the learned Arbitrator and even otherwise that the
Petitioners have accepted the stipulation that all other terms
and conditions shall remain the same as mentioned in the LOI.
This includes and covers apart from the general conditions of
contract and Arbitration clause 4.7.2 also. It is difficult to
dissect, now, at the instance of the Petitioners.
The Respondents were not party to the contract.
The Agreement dated 13 May 1999 was between the Petitioners
and one M/s. Biecrete Projects Private Limited of partnership
firm. The contract was assigned to the Respondents. As
alleged, it is without the Petitioners' prior consent. The
Arbitrator has dealt with this aspect and found that the
subsequent conduct shows that the Petitioners consented to the
assignment and in fact acted accordingly from time to time
without objection. The progress of the work were never stopped
and/or halted on this ground of assignment. Therefore, the
submission now so raised is without any substance and rightly
rejected. From time to time admittedly the Petitioners made
payments to the Respondents based upon the material available
on record and the part payments were also made to the third
person/party. There was no question of making these
payments, if there was no agreement between the parties and/
ssm 11 arbp406.09
or the Petitioners and for want of consent, notice and/or
intimation. No objection at any point of time on any of the
issues was raised in this regard in the arbitration proceedings.
The learned Arbitrator, therefore, rightly rejected this issue
while passing the final Award/Order.
THE CHALLENGE TO CLAIM OF PHASE-I ON MERIT.
BURDEN OF PROOF/ THE ARBITRTOR WAS AKSED TO
CONSIDER ALL MATERIAL ON RECORD :
The learned Arbitrator in this regard observed as
under :
"There is no doubt that the whole burden of proof
would lie on the Plaintiffs or the Claimants to prove
their case. The Defendants and Respondents may
not enter into witness box. It is always open for the
Defendants or the Respondents not to adduce any
evidence. In the present proceedings both the sides
have adduced documentary and oral evidence. The
Respondents have produced voluminous
documentary evidence. Having done so it is not
open for them to say that the Claimants cannot rely
on that documentary evidence to prove the case of
the Claimants. The Claimants can very well rely on
the facts in the documents of the Respondents to
prove the case of the Claims. The Claimants are not
estopped from relying on the documents of the
adversary. The Respondents have maintained
methodically the entire documentary record during
the course of the regular business with the
Claimants. I will have to look into and consider the
whole evidence, oral and documentary to finally
decide the dispute or differences between the
parties. No piece of evidence can be shut out from
ssm 12 arbp406.09
each other or totally ignored while deciding a lis
between the parties. The doctrine of burden of
proof has been succinctly explained by the Supreme
Court in the case of Lakshan Sao Vs. Dharmo
Chaudhari reported in (1991) 3 SCC 331. The
Supreme Court observed as under :
"6. It is always open to the Defendant not to
lead any evidence where the onus is open
(upon) the Plaintiff but after having gone into
evidence, he cannot ask the Court not to look at
and act on day. The question of burden of proof
at the end of case when both parties have
tendered evidence is not of any great
importance and the Court has to come to a
decision on a consideration of all materials."
The learned Arbitrator, therefore, based upon the material as
well as documents placed on record by the parties, has passed
the Award by taking note of the whole evidence, oral and
documentary and decided the issues with regard to the claim as
is contemplated.
THE DECISION ON MERIT :
21 As per the award : "Claim No. 1 : Phase I :
According to the Claimants the entire construction work
under the contract was completed and that they are entitled to
get the entire contract value of Rs. 7,42,02,320/-. According
to the Respondents however the Claimants have carried out the
work of Rs.7,37,28,552/-only. According to the Respondents the
ssm 13 arbp406.09
Claimants had not carried out the work of Renova Paint in
exteriors and therefore, they have deducted an amount of Rs.
5,98,768/-. I have to iron out this small difference in the
original contract value itself. The difference is on account of
work of Renova Paint in exteriors. According to the Claimants
they have applied three coats of Revona Paints and that after
completion of the work in September 2000 till the defence
statement filed here, there was no complaint on this aspect at
any time that the Claimants had not carried out the work of
the Renova Paint. As against the positive evidence of the
Claimants that they have carried out the Renova Paint work,
the Respondents' witness has admitted that the work of
Renova Paint did not form part of the original contract.
Coupled with this reply of the Respondents' witness it is
significant to note that there was no whisper of grievance
made by the Respondents at any time after September 2000
that the Claimants had failed to complete the work of Renova
Paint. It is to be, therefore, inferred that the Claimants had
completed the Renova Paint work and, therefore, there was no
complaint or grievance made by the Respondents. I will
therefore proceed on the basis of the contract value of Rs.
7,42,02,320/-."
22 The work was completed as claimed. The
Petitioners accepted the case that they carried out the work
to the extent of Rs. 7,37,28,552/- only. The Arbitrator
ultimately by recording the reasons proceeded with the said
ssm 14 arbp406.09
contract value, referring to the renewal and all other
connected items.
EXTRA ITEMS :
23 Both the parties relied and referred including the
learned Arbitrator in this regard on two documents Exh. C-61
colly. and Exh. C-45. There is no serious disputes that
after due discussion, though the claim was of Rs.
49,11,000/-, the settlement figure of Rs. 26,05,683/- was
fixed. But as it was not duly signed by the parties, there was
dispute with regard to the same. The learned Arbitrator,
therefore, has considered the admitted bills/documents Exh.
C-61 (colly.) and C-65 (colly.) to arrive at the conclusion by
giving detailed reasons. The learned Arbitrator even
recorded that there is no dispute in the calculation of the
payment and receipts, except the findings so recorded
above. There is ample material on record to show and as
recorded by the learned Arbitrator that the Petitioners made
payment to the tune of Rs. 1,05,85,168/- to third
person/party based upon the specific authorization given by
the Respondents, the original Claimants. The Respondents,
however, disputed the amount of Rs. 11,03,315/-. The
Petitioners failed to produce original receipts and/or any
document except the disputed photocopy of the
authorization letter. No acknowledgment of a third party was
placed on record by the Petitioners. The Claimant have not
admitted the amount of Rs. 9,95,917/-. The learned
ssm 15 arbp406.09
Arbitrator, therefore, based upon oral as well as the
documentary evidence on record and by details of
arithmetics calculation/account, observed as under :
"I, therefore, hold that the Claimants are entitled
to receive from the Respondents the net balance
of Rs. 15,62,355/-. I have no doubt in my mind
about the fact that the Claimants are entitled to
the aforesaid amount as far as their work in
respect of Phase I is concerned. As far as the
payments made to the third parties for which
the Respondents have not produced any kind of
authorization given by the Claimants nor have
they produced any acknowledgment given by
the concerned third parties, it is not possible for
me to allow the aforesaid deduction and to
disallow the claim of the Claimants to the tune
of Rs. 9,95,917/-."
24 The learned counsel appearing for the
Petitioners, however, pointed out and made submissions
that the learned Arbitrator ought not to have relied upon the
documents in part. The Respondents though admittedly
after the due discussion reduced the amount to Rs.
26,05,683/- it ought to have been overlooked by the
Arbitrator. The important facet in this controversy is that
the parties failed to accept these documents as final and
binding. The Respondents also failed to prove that the
agreement/decision was final and binds the parties.
Though initially it was agreed and recorded as Exh. C-45,
but as there was a dispute there was contra material on
record i.e. bunch of invoices produced by the Claimants (C-
61 colly.). This unsigned and/or invalid invoice/ document,
ssm 16 arbp406.09
in view of the objection so raised and the contra material
available on record, just cannot be the foundation to award
the amount as set out therein. I am also of the opinion that
the learned Arbitrator has rightly considered the original
documents in the form of invoices Exh. C-61 (colly.)
specifically when there is no dispute raised with regard to
these documents even by the Petitioners. These documents
were submitted by the Respondents and never disputed by
the other side. The learned Arbitrator, therefore, rightly
observed as under :
"I am faced with a strange scenario here. The
Claim of the Claimants for the extra items based
on a disputed statement Exh. C-45 is
Rs.26,05,683/-. The Respondents have
vehemently disputed this unsigned statement
though it is in their favour as against the not
disputed bunch of invoices at Exh. C-61 colly.
In my opinion, I will be legally on a sound
footing to accept the claim of the Claimants
based on admitted and not disputed
documents, Exh. C-61 colly. rather than the
claim based on a disputed document Exh. C-45.
I am therefore inclined to allow the claim of the
Claimants for Rs. 49,11,000/- for the work of
extra items proved to have been done by the
Claimants."
There is no denial to the fact of extra work. The learned
Arbitrator has considered the oral evidence led by the
parties in this regard. Therefore, the finding that the extra
work done by the claimants is covered by the main contract
which also implies that such extra work required to be done
ssm 17 arbp406.09
as and when necessity arises being items in the statement.
It is just, proper and reasonable to award for this extra
work that was done by the Claimants.
25 In so far as the amounts of security deposit and
retention money under the contract, the learned Arbitrator
after taking note of the evidence as well as the evidence of
claimants witnesses, accepted that the claim of the
claimants is restricted to the recovery of the accumulated
amounts under the head security deposit and retention
money as per the contract. This was so by referring to the
admitted document Exh. C-44. The learned Arbitrator,
therefore, right in observing in para 41 as under :
"I am, therefore, of the considered opinion that
the claim of the Claimants is surely restricted
to the pronounced two items i.e. the Retention
Money and the Security Deposit under the
Contract and also their entitlement for extra
items work under the Contract and the COP
(Ex.C-44)
The learned Arbitrator in the said para further observed as
under :
"I, therefore, conclude that the Claimants are
entitled to receive from the Respondents the
balance of Rs. 15,62,355/- out of the
contractual value of the work and Rs.
49,11,000/- for the extra items which are also
contemplated and implied in the contract. The
Respondents have not denied or disputed that
there was no extra work done by the Claimants.
ssm 18 arbp406.09
It would be unjust enrichment to deny this
legitimate claim of the Claimants for their
extra items work. The total entitlement,
therefore, comes to Rs.64,73,355/-. Admittedly,
however, the claim is restricted to the total of
security deposit and retention money i.e. Rs.
44,75,590/- only."
PHASE II WORKS:
26 There is no dispute that the Respondents/
Claimants received part payment from the contract value of
Rs.2,15,65,940/-. The balance was Rs. 10,24,553/-. The
learned Arbitrator after considering material placed on
record as also referring to the work done, extra item,
deductions, direct payment, TDS, WCT and others items
observes that the net balance remains to Rs. 10,24,554/-.
27 The learned Arbitrator rejected certain claims of
the claimants and not awarded the full amount so claimed
by the Respondents/ Claimants. There is no counter
challenge in this regard by the Respondents/ original
Claimants. The Arbitrator, therefore, taking overall view of
the matter rightly granted Award.
INTEREST
28 There is no specific agreement and/ or clause in
the contract with regard to the interest. Section 31(7) of the
Arbitration and Conciliation Act empowers the Arbitrator to
exercise discretion to award interest even at the rate of 18%
ssm 19 arbp406.09
per annum. But one cannot overlook the aspect of the
exercising discretion even in such commercial contract
matters that the claim of interest and/or grant should be
just and reasonable. The learned Arbitrator having once
given finding so recorded above and observed that the
Respondents have withheld the legitimate dues and claims of
the Claimants without any justification but ultimately
awarded interest at the rate of Rs. 12% per annum from
09.03.2005 on the amount of Rs. 55,00,143/-. In this
regard as admittedly the dispute was with reference to the
construction work based upon the tender so invited and the
work awarded from time to time and as admittedly
substantial payments were made during the progress of the
work also and further to some extent the parties are
interested in certain amounts that ultimately could not be
finalized. However, as the Arbitrator has granted the amount
for the first time after considering the material as well as
evidence on record, I am inclined to restrict the rate of
interest to 9% per annum instead of interest 12% per annum
as awarded by the learned Arbitrator. Based on the Supreme
Court Judgment, I am restricting the rate of interest to 9% in
such contractive matters.
COUNTER CLAIM :
29 The Petitioners (Respondents) though raised three
counter claims but restricted only two claims; i.e. for the
delay in completion of work and the defective work. The
ssm 20 arbp406.09
claim of Rs. 50,000/- to the abandonment of work was given
up. Both these counter claims requires supporting oral as
well as documentary evidence. Admittedly, the claims so
raised were for the first time in the arbitration proceedings
though a reference was made, that they reserved their right
to claim liquidated damages; but there was no such steps
initiated by them at the earliest point of time. In reply to the
claim so raised, they invoked the Clause referring to the
liquidated damages and also claimed towards the defective
work. The learned Arbitrator based upon the material
available on record, recorded the finding that the balance
amount due and payable was wrongly retained by the
Petitioner (original Respondent) and based on the available
material, awarded the claim. Therefore, in view of this
reasoning itself and as there is no counter material on
record to support the counter claim, I am not inclined to
interfere with the reasons so given by the learned Arbitrator,
rejecting the counter claim of the Petitioners. The aspect of
basic burden to prove the counter claim, just cannot be
overlooked. There is no material placed on record or even
brought on record by the Petitioners in support of the
counter claim to show that the delay, if any, caused only and
exclusively by the Respondents/Claimants. Admittedly, the
work was in progress from time to time and even regular
payments were made to the 3rd party with the interest by
the Respondents. The record shows that the substantial
work was done and in fact based upon the original contract
of the year 1999, the work orders were issued for other
ssm 21 arbp406.09
portion of the project. The due certificate invoices/
documents are part of the record. Therefore, the party one
who wants to recover his claim of liquidated damages, needs
to prove the delay caused and the actual losses, he suffered
as pleaded. Both these elements are missing in the present
case for want of evidence as well as material on record, apart
from the timely action. Assuming for the moment that there
is some delay in completion of the project but still fact
remains and as recorded by the learned Arbitrator that there
was no issue and proper invoices and/or the demand raised
by the Petitioners/original Respondents from time to time. It
is always necessary to give notice and opportunity to the
others parties to remove the defects and/ or repair the
defective work so that proper action, act or steps can be taken
by the persons who is under an obligation to repair and/or
maintain structure for the particular period, as claimed. It
is relevant to note that the Petitioners have got the balance
work done through the third agency. There is nothing to
show that the Petitioners have complied with the conditions
and/or terms of the contract/ clauses so raised and relied by
the parties before filing such a counter- claim at such a
delayed stage. The learned Arbitrator, therefore, according to
the terms of contract and/or clause and the evidence and
material placed on record rightly rejected the counter claim
also. Even other wise considering the totality of the material
and the reasons so given read with the material and the
evidence so led and referred by the learned counsel appearing
for the parties, I see there is no case made out by the
ssm 22 arbp406.09
Petitioners to interfere with the Award in any of the grounds
so raised. I am inclined to observe that the Award is well
within the frame work of law and the record.
30 Resultantly, the following order :
i) The Award dated 29th February, 2009 is modified
only to the extent of rate of interest to be 9% per
annum instead of 12% per annum from 9.3.2005.
ii)
The rest of the Award is maintained.
iii) There shall be no order as to costs.
(ANOOP V. MOHTA, J.)
.....
