Dda vs M/S Nav Bharat Construction Co.
2009 Latest Caselaw 5389 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of Reserve: September 17, 2009
                                                     Date of Order: December 23, 2009
+OMP 285 of 2006
%                                                                            23.12.2009
    DDA                                                             ...Petitioner
    Through: Mr.Bhupesh Narula, Advocate

       Versus

       M/s Nav Bharat Construction Co.                              ...Respondent
       Through: Mr. V.K. Sharma, Advocate


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       JUDGMENT

1. By way of this petition, the petitioner has assailed only one claim i.e. Claim no.29

of the award dated 28th February 2006 passed by learned arbitral tribunal.

2. The claimant (respondent herein) made Claim no.29 for a sum of Rs.5,30,000/- on

account of watch and ward from July 1993 to November 1997. The learned arbitral

tribunal held that the flat were completed on 6th July, 1993. The final bill was prepared on

17th September 1997. The allotment started in 2003. The claimant had claimed amount in

respect to watch and ward from 6th July 1993 till the bill was finalized i.e. 17th September

1997 i.e. for a period of 50 months. The arbitral tribunal awarded a sum of Rs.4,16,040/-

against this claim on the basis of rates given in the a Circular No.510.

3. The objections raised by the petitioner against this award in respect to claim no.29

OMP 285 of 2006 DDA vs. M/s Nav Bharat Construction Co. Page 1 Of 4 is that the claimant has been awarded the claim without any basis and without any proof

whether any person had been employed or any payment had been made by the claimant to

watch and ward staff. There was no agreement between the parties that

respondent(claimant) would do watch and ward of the flats. No such supplementary

agreement as ever executed between the parties for watch and ward. The petitioner has

relied on J. & K. and another v Dev Dutt Pandit AIR 1999 SCC 3196 wherein the

Supreme Court observed as under:

"16. Under clause 17 of the contract it is the contractor, who is responsible for any damage or loss to the work or part thereof caused due to any reason whatsoever and he at his own cost is required to repair and to make good of loss or damage. Contractor, therefore, could not claim any loss done to him on account of early onset of monsoon or otherwise. Similarly, under the terms of the contract he cannot claim any amounts towards idle labour. As a matter of fact under clause 69 these claims are not entertainable at all. Mr. Thakur for the contractor said that "idle employees" as mentioned in clause 69 of the contract is not the same thing as "idle labour". According to him, the term "idle employees" would mean regular employees on the roll of the contractor like Engineers etc. We do not think such a restricted construction can be put on the term "idle employees" as not include idle about idle labour as well. Read as a whole skilled and unskilled labour are all employees of the contractor under the contract.

17. Any work done on account of deviation or alteration could not be undertaken without the previous permission in writing of the Engineer. It is admitted case of the contractor himself that there is no writing though it was promised to him orally. In view of clause 27 of the contract claims 1 and 3 could not have been accepted.

OMP 285 of 2006 DDA vs. M/s Nav Bharat Construction Co. Page 2 Of 4 When the principal claims were wrongly awarded there is no question of any award of interest on the amounts claimed under those heads."

4. It is submitted by petitioner/ objector that the arbitral tribunal gave the award

contrary to the contract as there was no contract for watch and ward. The contractor was

at liberty to leave the flats after completion. It would have been the responsibility of DDA

to look after the flats once completion certificate has been issued. It is also submitted that

the circular relied upon by the arbitrator was not applicable in this case since this Circular

had come into force on 2nd June 1997 whereas the contract between the parties was of

1993 and the commercial relations of the parties were not governed by this circular and

the decision rendered by the arbitral tribunal was contrary to the agreement and bad in

law.

5. On the other hand, respondent (claimant) had relied upon Anant Raj Agencies v

DDA & Anr. 2005(1) Arb. LR 590 to argue that the Court should not set aside the award

lightly and the effort of the Court should be to uphold the award. It is also submitted that

the possession of the flats was not taken by DDA and so long as the possession was not

taken over by DDA, the petitioner was burdened with this keeping of watch and ward.

6. It is settled law that an arbitrator is bound by the contract between the parties. The

watch and ward of the flats was not part of the contract neither it was the responsibility of

the respondent to keep watch and ward of the flats. The respondent/ contractor was

responsible for completion of the flats and after completion certificate was obtained by

the respondent, it was the responsibility of petitioner to protect is property. I

OMP 285 of 2006 DDA vs. M/s Nav Bharat Construction Co. Page 3 Of 4

7. If the respondent had completed the work and removed all defects, the respondent

was at liberty to leave the flats in accordance with the contract after removal of debris and

excess materials etc lying there. The reliance of learned arbitral tribunal on a circular of

1997 for awarding the amount against watch and ward is contrary to the terms of the

contract. This circular was not in force at the time when the contract was entered into

between the parties. Neither respondent at any point of time had asked the petitioner to

enter into the agreement for watch and ward.

8. In any event, I consider that the contractor cannot be allowed to enrich himself on

the ground of making payments to watch and ward staff without showing any proof of

making payments. No evidence was led by the contractor that any payment was actually

made by him to any chowkidar or anybody was even employed by the contractor.

Awarding of the claim by the learned arbitral tribunal has been purely on the basis of a

circular without there being any evidence.

9. I, therefore, consider that the award against claim no.29 is liable to be set aside.

The objections raised by the petitioner are allowed. The award in respect of claim no.29 is

hereby set aside.

10. The objection petition stands disposed of.

December 23, 2009                                    SHIV NARAYAN DHINGRA J.
rd




OMP 285 of 2006       DDA vs. M/s Nav Bharat Construction Co.               Page 4 Of 4