Delhi Development Authority vs M/S Tantia Construction Company
2009 Latest Caselaw 944 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+             FAO(OS) 197/1999 & C.M. No.2328/1999

                                 Date of Decision: 23rd March, 2009

      DELHI DEVELOPMENT AUTHORITY                 ..... Appellant
                     Through: Ms. Anusuya Salwan and Mr.
                              Rajesh Kumar, Advocates
                versus

      M/S TANTIA CONSTRUCTION COMPANY          ..... Respondent
                    Through: Mr. George Thomas, Mr. Sanjay
                              Kumar Chhetry and Ms. Rajashree,
                              Advocates

      CORAM:
      HON'BLE MR. JUSTICE MUKUL MUDGAL
      HON'BLE MR. JUSTICE VIPIN SANGHI

      1. Whether the Reporters of local papers may        No
         be allowed to see the judgment?
      2. To be referred to Reporter or not?               Yes
      3. Whether the judgment should be reported          Yes
         in the Digest?
%                         JUDGMENT (Oral)

MUKUL MUDGAL, J.

1. This appeal challenges the order of the learned Single Judge

dated 08.03.1999, by which order the objections to the award dated

09.08.1996 were dismissed and the award was made a Rule of the

Court. The order dated 30.08.1999 passed in this appeal stipulated

that the arguments shall be confined to Claim Nos.2, 3(C) and 3(D) and

the item of escalation on Claim Nos.2, 3(C) and 3(D) under Claim No.7.

It appears that the mention of Claim No.3(D) was a typographical error

in the order dated 30.8.1999, as there is no claim 3(D) awarded by the

learned Arbitrator. There was Claim No.3(d) made for "Reinforcement

for RCC Walls - Rs.7,71,050/-", but this Claim was disallowed by the

learned Arbitrator, and it has attained finality. All the aforesaid claims

arose on a fundamental premise that the water level only upto a level

of 210 mts stood accounted for under the contract and since the water

level rose above 210 mts, the work executed by the contractor was

entitled to be considered as work carried out in sub-soil for which

payment should have been made as per Delhi Schedule of Rates

(DSR), 1985. For this claim the respondent-claimant relied upon clause

13 of the agreement. The learned Arbitrator has recorded as a finding

of fact that the appellant had taken the level as per condition No.27 (at

page 89 of the agreement) and found the water level to be more than

210 mts which was also recorded. The details of claim nos. 2, 3(c) and

7, in so far as they are relevant are as follows:-

Claim No.2 This claim was made for a sum of Rs. 22 lakhs

by way of extra and substituted items. It was claimed that:-

(i) Earth work in excavation

(ii) Laying of CC

(iii) Laying of RCC pipes

(iv) Laying of stone soiling etc. were executed in or under water or liquid

Claim No.3(C) This claim was also made for carrying out the

work of centering and shuttering for foundation footing and

mass concrete in sub-soil water level condition for Rs. 11,000/-

and for carrying out RCC work in a raft by Rs.1,14,418.92.

Claim No.7 was made towards escalation payable under

clause 10(cc) of the contract, inter alia, in relation to works

carried out in sub-soil conditions.

2. The appellant had sought to rely upon clause 73 of the

agreement and on that basis had argued that the contractor/

respondent was not entitled to claim anything extra over and above

the rates provided in the schedule of quantities for execution of the

work in or under water on account of pumping and bailing out of water

by any method of lowering of sub-soil water level during the execution

of work.

3. It is agreed between the parties that since Claim Nos.3 & 7

are dependent upon the reasoning contained in Claim No.2, the

decision on the Claim No.2 will govern the pleas in respect of Claim

Nos.3 & 7 as well.

4. Having heard learned counsel and given our due

consideration, we are of the view that Clause 13 clearly shows that if

the sub-soil water level rises upto 210 meters, no extra payment was

to be made, but if it rose beyond 210 meters, then payments was to be

made as per DSR 1985. Clause No.13 reads as follows:

"13. As per the soil investigation, water table has been found at 209 mtr. as per the benchmark. No payment for working under the sub soil condition will be made if the water table rises to 210.0 mtr. during the execution of the work. If it rises above that level i.e. 210.00 mtr., payment for excavation etc. will be governed by the item of working

under sub-soil as per DSR 1985."

(emphasis supplied)

5. Clause 73 of the contract reads as follows:

"73. Nothing extra over and above the rates provided in the schedule of quantities for execution in/or under water shall be paid for pumping and bailing out water i/c by any method lowering of sub-soil water level during execution of work."

6. In our view Clause 13 secifically deals with the situation where

the water table rises above 210 mts during the execution of the work.

In that situation the Contractor is entitled to payment for excavation

etc for working under sub-soil conditions as per DSR 1985. Clause 73

only puts a limitation on extra charging for pumping and bailing out

the water or lowering of water including by any method lowering of

sub-soil water level during execution of work. This only means that if

the water table is below 210 mts, the Contractor would not be entitled

to claim anything extra over and above the rates provided for in the

schedule of quantities for execution of the work, including for pumping

and bailing out water by any method of lowering the sub-soil water

level during the execution of the work. This clause cannot be

interpretated to mean that if the water level rises above 210 mts, the

Contractor would not be entitled to claim payment for excavation etc

at the rates applicable for carrying out sub-soil items of work as per

DSR 1985. Both clauses 13 and 73 have to be harmoniously construed

and we see no contradiction in that. If the interpretation of the

appellant were to be accepted, clause 13 would be rendered nugatory,

which could not have been the intention of the parties. In our view the

arbitrator correctly considered the above provisions and as the

appellant itself had found that the water level is more than 210

meters, awarded the amount to the respondent-claimant. The

interpretation given by the learned Arbitrator to the agreement clauses

is reasonable and plausible. That is another reason not to interfere

with the same.

7. No doubt the learned Single Judge had not analyzed the

above proposition but the conclusion of the learned Single Judge is

correct and since we have ourselves analyzed the clauses, we find no

merit in the challenge to the award of Claim No.2. On the same basis

claim no.3(C) as awarded by the Arbitrator as also escalation on claim

nos. 2 and 3(c) awarded under Claim No.7 cannot be faulted.

Accordingly we dismiss the present appeal.

8. The Registry is directed to release the amount deposited in

this Court to the respondent along with interest accrued thereon by

08th May, 2009. In case the respondent is able to satisfy that the

amount received by it does not satisfy the decretal amount, it is open

to the respondent to recover the balance amount in execution after

taking into account the amount withdrawn from this Court.

MUKUL MUDGAL, J.

VIPIN SANGHI, J.

MARCH 23, 2009 RSK