Sh. Bharat Lal vs Municipal Corporation Of Delhi & ...
2010 Latest Caselaw 1677 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          O.M.P. No.327/2003

                                        Date of decision : March 25, 2010
SH. BHARAT LAL                                           ... Petitioner.

                                  Through:        Mr. Sanjay Bansal, Advocates
               VERSUS

MUNICIPAL CORPORATION OF DELHI & ORS                         ....Respondents

Through: Ms. Mansi Gupta, Advocate

Sh. Kanan,Executive Engineer

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers 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?

% JUDGMENT(ORAL)

VALMIKI J. MEHTA, J

1. In this petition under Section 34 of the Arbitration and Conciliation Act,

1996,the petitioner challenges the Award only as regards Claim Nos. 5 and 7.

2. Claim No. 5 was the claim for enhancement of cost of labour and material

under Clause 10CC of the contract. It is an undisputed fact that the stipulated date

OMP-327-2003 Page 1 of completion was 19.5.1993 but the actual date of completion was 24.6.1996.

There is therefore an admitted delay which was caused in the completion of the

work. The Arbitrator while dealing with this claim, on the one hand gives a finding

that the petitioner did not produce any document to show that the competent

authority has granted extension without levy of compensation, but in the same

breath, he has given a finding that the respondent did not levy any

compensation/liquidated damages under Clause 2 of the

Agreement. These are clearly mutually inconsistent findings. Once the Arbitrator

has found as a fact that no compensation/liquidated damages were imposed by the

respondent under Clause 2 of the Agreement, the petitioner consequentially is not

guilty of delay in the performance of the work. If the petitioner was guilty of delay

in the performance of his obligations, then, the respondent would definitely have

imposed liquidated damages and which it has not. Consequentially, therefore, the

petitioner is entitled to payment of higher cost which it had incurred for material

and labour under Clause 10 CC. The Award with respect to Claim 5 is therefore

set aside and the matter is remanded back to the Arbitrator for a fresh decision on

this claim in accordance with law. In case, the Arbitrator holds that the petitioner

is not guilty of delay inter-alia because no liquidated damages have been imposed

by the respondent, then in such circumstances, the Arbitrator will consider the

awarding of an amount under Clause 10CC to the petitioner.

OMP-327-2003 Page 2

3. Claim No. 7 is also related to Claim No.5 in that, this Claim No 7. was

towards expenses incurred in the extended period towards maintaining

establishment like Engineer, Head Mistri, Supervisor, Chaukidars, Vibrator etc.

This claim has also been denied by the Arbitrator by holding that the claimant

failed to produce documentary proof to show that the respondent is guilty for all

the delays and that competent authority has not granted extension without levy of

compensation. As already discussed under Claim No.5, the competent authority

has in fact not levied any compensation under Clause 2, and which would have

been the case, if, the petitioner was guilty of delay. Accordingly this claim is also

remanded back to the Arbitrator for a fresh decision in accordance with law on the

same basis as Claim No. 5.

In case, the Arbitrator holds the petitioner entitled to the Claims 5 and 7,

then the Arbitrator will also consider the prayer of the petitioner for grant of

interest on this claim in accordance with law.

4. With the aforesaid observations, the Award to the extent of Claim

Nos. 5 and 7 is set aside and sustained so far as the other claims as adjudicated.

The records of the case which are presently in this court be sent back by special

messenger to the Arbitrator to pass a fresh Award in accordance with law with

OMP-327-2003 Page 3 respect to Claim Nos. 5 and 7. The petition stands disposed of. Parties are left to

bear their own costs.

                                                   VALMIKI J. MEHTA, J

March 25, 2010
ib




OMP-327-2003                                                                 Page 4