M/S.Ramnath International ... vs Uoi Through Northern Railway, ...
2009 Latest Caselaw 147 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
+                             Ex.No.146/2006
     %                Date of Decision:19.01.2009
M/s.Ramnath International Construction (P) Ltd         .... Decree Holder
         Through: Mr. D.P.Sharma, Advocate.


                                 Versus

UOI through Northern Railway, Headquarters         .... Judgment Debtor
Office.
           Through: Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported in              NO
      the Digest?

ANIL KUMAR, J.

*

This is a petition by the Decree holder/petitioner seeking

execution of award dated 16th April, 2001 passed under the Arbitration

& Conciliation Act, 1996.

The Decree holder/petitioner seeks execution of the award

pertaining to his claim No.2 under which the claim consisting of five

broad parts, earthwork, pitching, breast wall, mass concrete and some

steel was awarded to the petitioner. While awarding the claims it was

also held that details due to variation in the ground levels furnished by

the Railways at the time of tendering and as actually handed over and

similarly other items are matters of detailed measurements which

should be jointly recorded and paid for if not paid by the Railways

already.

The award regarding claim No.2 is as under:-

2.    Extra cost for temporary           Rs.56,46,000/-     As detailed
      staging for supporting                                below
      Centering of Cast-in-situ
      presstressed concrete girder

Reason:-    From the details of claims filed by the firm, it is noted that

the claim consists of five broad parts:- earthwork, breast wall, mass concrete and some steel. Details due to variation in the ground levels furnished by the Railways at the time of tendering and as actually handed over and similarly other items are matters of detailed measurements which should be jointly recorded and paid for, if not paid by the Railway already.

The learned counsel for the decree holder contends that though

the measurement was carried out regarding earthwork and pitching,

however, no measurements have been carried out in respect of breast

wall, mass concrete and steel.

In the execution petition filed by the decree holder it has not been

elaborated that the amounts have been paid in respect of the

earthwork, pitching and the measurements have not been carried out

for breast wall, mass concrete and some steel.

The petition is contested by the judgment Debtor contending

inter-alia that in terms of the award dated 16th April, 2001 payment of

Rs.27,93,255/- was made after deducting Rs.58,169/- as TDS on 16th

August, 2001. It is also contended that the said amount of

Rs.27,93,255/- was received by the decree holder towards full and final

settlement of all its claims against the judgment debtor and

consequently the award dated 16th April, 2001 has been completely

satisfied.

The judgment debtor has also pointed out that by a letter dated

5th July, 2001 the decree holder was requested to attend the office of

Deputy Chief Engineer/Construction, Jammu Tawi at 9.00 hours on 9th

July, 2001 for recording joint measurement. According to the judgment

debtor the joint measurements for claim No.2 were taken on 9th July,

2001 in the presence of authorized representative of decree holder,

Mr.Vishwajeet Sood. Mr.Vishwajeet Sood is stated to have left the office

of the judgment debtor on that date and made a representation that he

will come back again on the next day to sign the joint measurements.

However, neither Mr. Vishwajeet Sood nor the decree holder nor anyone

else on behalf of the decree holder turned up next day i.e 10th July,

2001 or thereafter to sign the joint measurements.

It is contended that on the basis of joint measurements taken on

9th July, 2001 by letter dated 3rd August, 2001 the total amount of

Rs.28,57,424/- was paid. In the circumstances, the judgment debtor

contends that no amount is due and the decree holder is not entitled for

execution of any amount against the respondent. It is also contended

that now after considerable period, it may not be possible to take the

measurements.

From the perusal of the execution petition, reply and rejoinder it

is apparent that it has not been denied that Mr.Vishwajeet Sood had

attended the office on 9th July, 2001. This has also not been disputed

that the measurements were taken. What is disputed is that the

measurements were taken only for 2 components and not five

components which were awarded to the decree holder under the award.

The measurements were taken in the presence of the

representative of the decree holder who however, did not sign the same

and went back with the representation that he would come and sign the

measurements next day. This is not denied that Shri Vishwajeet Sood

was the representative of the decree holder. Nothing has been shown

that the decree holder or the representative of the decree holder went

back on the next date and signed the joint measurement or represented

to the judgment debtor that the measurements had been taken for two

components and not for all the five components which were awarded to

the decree holder under the award. The amount which was sent by

letter dated 3rd August, 2001 was accepted. The said amount was

accepted by the decree holder in full and final settlement. Since TDS

certificate on the amount which was given to the decree holder was not

given, therefore a letter dated 12th September, 2002 was written only

demanding the TDS certificate and acknowledging the amount already

paid. The letter dated 12th September, 2002 is as under:-

            No.RICL/JURL/F/02                    12 September 2002

            Deputy Chief Engineer (C)
            Northern Railway
            Jammu Tawi

            Dear Sir,

Re:- Non-receipt of TDS certificate in Form No.16A

Ref:- Balance work of design and construction of Viaduct in Zone E-11 on JURL

In satisfaction of the Award dated 16.4.2001 in the above matter cheque No.G-230704 dated 16.8.2001 for Rs.27,93,255/- was sent after deducting Income Tax plus 2% surcharge on Income tax vide your office letter No.6- A/cs/Dy.CE(C)/JAT/Arb dated 16.8.2001 copy enclosed for ready reference. However, TDS certificate in Form No.16A for Rs.58,169/- being the amount of tax deducted at source out of the awarded amount has not been sent along with the said cheque and is still awaited. As the accounts of the year 2001-2002 are under compilation, you are requested to send the TDS certificate for Rs.58,169/- without any further delay. The certificate is required to be submitted to the Income Tax office along with the Return of Income Tax. Needless to emphasize that it is the statutory obligation of the prayer to deduct TDS and furnish the necessary TDS certificate in Form No.16A to the payee.

Kindly look into the matter and have the needful done at your earliest.

Thanking you,

Yours faithfully

For Ramnath International Construction Pvt Ltd.

(R.D.Kapoor) General Manager

From the letter dated 12th September, 2001 it is apparent that the

decree holder did not accept the amount reserving his right to claim the

amount for alleged three components nor it was represented to the

judgment debtor that the amount has been paid only for two

components out of five components of claim no.2. After 12th September,

2002 no communication seems to have been sent by the decree holder

till 15th February, 2006 for almost four years claiming any amount

towards the alleged balance three components of claim no.2. After

measurements were taken in the presence of the representative of the

decree holder, it has not been represented by the decree holder that the

measurements were in respect of two components and not for all the

five components. No reason has been disclosed as to why the

measurements shall be taken for only two components and not for all

the five components of the same work.

The learned counsel for the decree holder has relied on the letter

dated 23rd August, 2001 allegedly sent by fax. However, no report about

the transmission of the said document has been produced. The receipt

of said document is not admitted by the judgment debtor. In any case if

the said letter was sent on 23rd August, 2001 after the receipt of letter

dated 3rd August, 2001 sending an amount of Rs.28,46,5000 towards

the claim no.1 & 3 and an amount of Rs.4924 towards the claim no.2,

the decree holder should have protested and sought measurement of

alleged three components. Nothing was done for almost four years.

In the circumstances, it is apparent that the claim now raised by

the decree holder is an afterthought and the measurements were done

by the respondents in the presence of the authorized representative of

the decree holder and the payment was made to the decree holder

which was accepted by the decree holder. The learned counsel for the

judgment debtor also contends that after four years, the measurement

as has been claimed by the decree holder cannot be carried out.

In the circumstances, the inevitable inference is that no amount

is due from the judgment debtor to the decree holder and whatever

amount was due was paid in August, 2001. Therefore, it cannot be held

that any amount is due to the decree holder from the judgment debtor.

The execution petition filed by the decree holder is, therefore, without

any merit and it is dismissed.

JANUARY 19, 2009                                  ANIL KUMAR, J.
'K'