Shri S.K. Garg vs M/S Sky City Hotels (P) Ltd.
2009 Latest Caselaw 3610 Del

      *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       OMP No.470/2009.

%                                  Date of decision:07.09.2009

SHRI S.K. GARG                                      ....Petitioner
                        Through:    Mr. Man Mohan Singh, Advocate for
                                   the Petitioner.

                                Versus

M/S SKY CITY HOTELS (P) LTD.                        ... Respondent
                        Through: Mr. Sangram Patnaik, Mr. Shante
                                 Pandey & Ms. Bimola Irom, Advocates
                                 for the Respondent.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?               NO

2.     To be referred to the reporter or not?        NO

3.     Whether the judgment should be reported       NO
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioner claiming to be a building contractor engaged by

the respondent for carrying out the construction work has filed this

application for interim measures of restraining the respondent from

getting the balance construction work done from any third party till

the measurement of the work done by the petitioner are recorded.

The counsel for the petitioner, on enquiry, had on the last date

stated that the construction works were carried out till 15th

November, 2008. Since this petition was preferred after over ten

months from the cessation of the works, no ex-parte order against

the respondent was granted.

2. The counsel for the respondent has appeared today and though

states that reply can be filed, has stated that the contract with the

petitioner was terminated on 22nd April, 2008 and w.e.f. 13th April,

2008. He also states that the construction work has since been

completed and the Haryana Urban Development Authority has on 6 th

April, 2009 already issued the Completion Certificate. The transcript

of the e-mail dated 22nd April, 2008 of termination of contract and

the photocopy of the Completion Certificate dated 6th April, 2009 are

handed over in the court and are taken on record.

3. The counsel for the petitioner on enquiry states that the

petitioner had done the work of construction till the upper ground

floor only. Though, the counsel for the respondent controverts the

aforesaid statement but from the Completion Certificate handed

over, it is borne out that the same is till the stage of laying of the

roof of the 8th floor. Thus, it appears that no purpose would be served

in directing any measurements at this stage when substantial work

has already been carried out at site.

4. The petitioner has also sought the relief of restraining the

respondent from interfering with the petitioner removing his tools,

machinery, plants, material lying at site. The counsel for the

respondent, on instructions, states that none of the machinery, tools,

plants, material of the petitioner are lying at site. In these

proceedings under Section 9 of the Act, such disputed questions

cannot be adjudicated and in view of the stand of the respondent and

long lapse of time and intervening events, this relief also cannot be

granted. It shall however be open to the petitioner to, if permissible

in law, in the arbitration proceedings claim relief in this regard

and/or as to the value of any machinery, tools, plants, material left at

site.

5. With the aforesaid observations, the petition is dismissed.

However, in the circumstances, parties are left to bear their own

costs.

RAJIV SAHAI ENDLAW (JUDGE)

September 7th, 2009 pp