Delhi High Court
Dda vs M/S Mohan Construction on 2 July, 2009
Author: Mukul Mudgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 286/1998
% Decided on : 2nd July, 2009
DDA ..... Appellant
Through: Mr. M.K. Singla, Advocate.
versus
M/S MOHAN CONSTRUCTION ..... Respondent
Through: Mr. Sunil K. Mittal and Mr. Kshitij Mittal,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1. Whether the Reporters of the local newspapers 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?
J U D G M E N T (ORAL)
MUKUL MUDGAL, J.
1. This appeal arises from a judgment of the learned Single Judge dated 21st May,
1997 affirming the award of the arbitrator dated 7th November, 1987.
2. The appeal relates only to a claim which is for a sum of Rs. 60,224/- arising out
of Claim No. 12 for providing brass stays and handles in steel windows. The
Contractor‟s claim was based on the premise that the contract did not stipulate the
provisions of the brass stays and handles and since the Contractor was required to put the
brass stays and handles, the claim, therefore, was made.
3. The learned Arbitrator has dealt with the aforesaid claim as follows:-
" A careful reading of the agreement item of steel windows
shows that it does not cover the cost of brass stays and handles.
The quantities claimed by the contractor are 3602 stays and 4346
handles. No details in support of these quantities have been
furnished by him. He has taken these quantities from the extra
items of „oxidising‟ brass handles and stays paid to him. The
respondent has stated that the quantity of stays and handles does
not exceed beyond 3400. He also as stated that the size of fastener
(handle) actually provided is 75 cm as against 100 cm shown in the
standard design. In the absence of any other record, I accept the
quantity of 3602 „stays‟ as correct. The number of „handles‟
should be the same as „stays‟ since normally one „handle‟ and
„stay‟ would be provided for each steel window. On this basis the
amount payable to contractor will be:
1) Stays (300 cm Long)
(Item 117 (A), Page 87
DSR 1967) 3602 @ Rs. 8.15 Each Rs. 29,356/-
i) Fasteners (75 mm) 75% rate
At Item 16, Page 87 of
DSR 1967 3602 X 0.75 x 6/20 Rs. 16,749/-
___________
Rs. 46,105/-
___________
Add 47% enhancement under
Clause 12 Rs. 19,319/-
___________
Rs. 60,224/-
___________
The claim is justified for Rs. 60,224/-."
The appeal of the DDA is confined to this claim only. We find no infirmity in the
finding of the learned Single Judge which rejected the contention of the DDA that as per
Item No. 10.9.5.2 of CPWD Specifications brass stays and handles are part of the
specification for the window.
4. Having perused the Award, we find that this plea was not raised before the
learned Arbitrator and the same was not even taken up in the objections preferred against
the Award. This could not be refuted by the learned counsel for the appellant.
5. Consequently, since this plea was not taken up before the learned Arbitrator, it
ought not to have been raised before the learned Single Judge. In any case, the learned
Single Judge relied upon a judgment in Suit No. 554-A/82 where in somewhat similar
circumstances, it was found that the brass fittings to be fixed to the steel windows were
not included in description of that item.
6. Mr. Singh, learned counsel for the respondent has urged before us rather
vehemently that the claim is covered by Item No. 10.9.5.2 of CPWD Specifications.
7. Even if it were so, the amount involved is so minimal and the fact that Item No.
10.9.5.2 of CPWD Specifications is missing from the pleadings of the DDA inspite of the
several opportunities granted, it does not warrant any consideration from this Court.
8. Accordingly, we see no merit in the appeal and the same is dismissed.
MUKUL MUDGAL, J
NEERAJ KISHAN KAUL, J
JULY 02, 2009
Sb/RS
