Shri S.B. Verma Construction ... vs Teknow Consultants And Engineers ...
2009 Latest Caselaw 445 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      OMP No. 592/2008

%                      Date of Decision: February 09, 2009


# Shri S.B. Verma Construction Co.             ..... Petitioner
!               Through: Mr. Moni Cinmoy, Mr. Rajesh Kumar
                          & Mr. Atul Verma, Advocates

                                     Versus

$ Teknow Consultants & Engineers Pvt.
  Ltd. & Anr.                               .....Respondents

^ Through: Mr. R.P. Kapur, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may 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?

S.N.AGGARWAL, J (ORAL)

1. This order shall dispose of the petition filed by the

petitioner under Section 9 of the Arbitration & Conciliation Act,

1996 seeking following reliefs:-

1. Secure the amount of the petitioner till the 9th running bill which have already been submitted with the respondent No.1 amounting to Rs.23,83,573/-.

2. Appoint an independent person/agency to measure and record the work carried out by the petitioner till date, after the 8th running bill which have already been verified by the respondents, and also to prepare an inventory of the materials, tools and machinery of the petitioner lying at the site.

3. Restrain the respondents from taking over the site and carrying out any work at the site till the final measurement is conducted by an independent person/agency.

2 Briefly stated the facts of the case giving rise to this

petition are that the respondent No.2 had awarded a contract to

respondent No.1 for construction of certain villas at Babar Pur

Mandi, Eledeco Estate-I, G.T. Karnal Road Sector No.40, Panipat

Haryana. The respondent No.1 in turn awarded the sub-contract to

the petitioner for construction of 9 villas out of the total

construction work awarded by respondent No.2 to respondent No.1.

3 The contract between the petitioner and respondent

No.1 contained an Arbitration Clause being clause No.9 which reads

as follows:-

"In the event of any dispute arising out of this sub-contract, the parties hereto agree that the matter shall be referred to the Director (Project) or

Managing Director of the company and any further unresolved issue shall be referred to Arbitration under the Arbitration Act, 1940 and amendments thereto. The venue of such Arbitration shall be New Delhi only."

4 In terms of the construction contract between the

petitioner and the respondent No.1, the petitioner had been

submitting running bills for payment to respondent No.1. The

grievance of the petitioner is that the respondent No.1 had not

cleared 4 out of total 9 running bills so far submitted by the

petitioner to respondent No.1. Even with regard to the remaining 5

running bills, it is submitted that the complete payment has not

been made. Mr. Moni Cinmoy, learned counsel appearing on behalf

of the petitioner contends that the payment with regard to the last

4 running bills has not been made by the respondent No.1 because

according to respondent No.1 the measurement at site does not

match with the measurement mentioned by the petitioner in the

running bills. The counsel appearing on behalf of the petitioner

therefore requests that this court may direct respondent No.1 to

take measurement at site and to clear the running bills of the

petitioner pending for payment.

5 Per contra Mr. R.P. Kapur, learned counsel appearing on

behalf of the respondent No.1 has argued that the measurement

mentioned by the petitioner in the running bills is not correct as per

site and therefore, according to him, the payment of the running

bills could not be made by the respondent No.1 to the petitioner.

The counsel appearing on behalf of the respondent No.1 says that

in fact it is respondent No.1 who has to make recovery from the

petitioner under the sub-contract awarded to him. The counsel

appearing on behalf of respondent No.1 has raised an objection to

the maintainability of the present petition and also to the reliefs

claimed by the petitioner in this petition.

6 I have given my anxious consideration to the above rival

arguments advanced by the counsel for the parties. From the

submissions made by the counsel for the parties, it appears to me

that there is a dispute regarding the payment of running bills of the

petitioner. According to the counsel appearing on behalf of the

petitioner, the running bills were not paid by the respondent No.1

because of dispute regarding the measurement of the work done by

the petitioner at site. From the rival submissions of the counsel for

the parties, it appears that the parties are at issue regarding

payment of running bills of the petitioner. This court is of the

opinion that the dispute regarding the payment of running bills

cannot be addressed by this court on the face of arbitration

agreement between the parties. The parties while entering into the

contract had decided for a mechanism for addressing the dispute

that may arise between them. This mechanism as agreed upon

between the parties under Clause 9 of the Contract referred herein

above provides that in the first instance the petitioner has to

approach the Director (Project) or the Managing Director of

respondent No.1 for redressal of his grievance. During arguments,

learned counsel appearing on behalf of the petitioner has handed

over a letter dated 05.02.2009 received by his client asking him to

appear before the Managing Director on 11.02.2009 in connection

with payment of his running bills.

7 Having regard to the submissions made by the counsel

for the parties, I am of the view that the petitioner has to approach

the Managing Director of the respondent No.1 on the date already

fixed before him i.e., 11.02.2009 and make his grievance with

regard to the non-payment of his running bills. In case the

petitioner is not satisfied with the decision of the Managing

Director, then in that event the petitioner can invoke the arbitration

clause and demand arbitration from respondent No.1. This court in

exercise of its jurisdiction under Section 9 of the Arbitration &

Conciliation Act, 1996 cannot direct the respondent No.1 to take

measurement or to clear the running bills of the petitioner because

the dispute in that regard has to be adjudicated through the

process agreed upon between the parties in clause 9 of the

arbitration agreement referred herein above.

8 In view of the above, I do not find any merit in this

petition, which fails and is hereby dismissed leaving the parties to

bear their own costs.

February 09, 2009                           S.N.AGGARWAL
'nks'                                          [JUDGE]