Delhi High Court
Pioneer Properties & ... vs Govt. Of Nct Of Delhi & Ors. on 29 April, 2013
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: April 29, 2013
+ ARB.P. 329/2012
PIONEER PROPERTIES & CONSTRUCTION CO ..... Petitioner
Through Mr.Nishant Datta, Adv. with
Ms.Sampath Sudha and Ms.Garima
Hooda, Advs.
versus
GOVT OF NCT DELHI & ORS ..... Respondents
Through Mr.T. Mitra, Adv. for
Ms.Anjana Gosain, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The present petition has been filed by the petitioner under Section 11
of the Arbitration and Conciliation Act, 1996 for appointment of an
Arbitrator.
2. On the basis of a request from the MCD, Counsellor Ward No.127,
Rejender Nagar, a scheme amounting to `21.92 lac was framed and
submitted to the Urban Development Department in the month of February
2005. The Principal Secretary, Department of Urban Development
sanctioned `20 lac for the reconstruction of a chaupal at village Dashgehra
vide letter No.F.No.18A(67)/5/UD/Chaupal/Plg./2004-05/18900 dated 9th
March, 2005.
3. In pursuance of the above, a tender for the "Demolishing and re-
construction of General Chaupal at village Dasghera" was floated. On
completion of the tender process, M/s Pioneer Properties and Construction
Co. was awarded the work for an amount of `20,32,278/-. The stipulated
date of commencement of work was 6 th January, 2007 and the date of
completion of work was 5 th July, 2007.
4. Notice of the petition was issued to the respondents. Reply by way of
affidavit of Sh.Raveender Kumar was filed by the respondent No.1 in which
it is stated that an Ayurvedic Dispensary under the aegis of the Health
Department was in existence at the above said chaupal. The said dispensary
was not removed or shifted despite of various communications to the Chief
Medical Officer. The respondent No.1 was left with no option but to cancel
the contract under clause 3(A) of the agreement to avoid any disputes with
the contract. A decision for cancellation of the contract was communicated
to the contractor who was requested to collect the amount of earnest money
and performance guarantee deposited for the work by letter dated 24 th June,
2008. The petitioner thereafter collected the amount of earnest money as
well as performance guarantee deposited for the work in the month of July
2008. After two years i.e. 11th August, 2010, the petitioner raised some
claims on the respondent No.1 and on 3 rd January, 2011, the petitioner asked
the Chief Engineer (Irrigation and Flood Control Department) to appoint an
Arbitrator. The relevant clause 25(ii) of the agreement provides that if the
contractor does not make any demand for appointment of arbitrator in
respect of any claims in writing within 120 days of receiving the intimation
from the Engineer-incharge that the final bill is ready for payment, the
claims of the contractor shall be deemed to have been waived and absolutely
barred and the Government shall be discharged and released of all liabilities
under the contract in respect of these claims.
5. In the present case, the petitioner/contractor was asked to collect his
earnest money deposit and performance guarantee on 24 th June, 2008 and it
collected the same in the month of July 2008. Thus, it is clear that the
claims of the petitioner after a lapse of more than two years on 11 th August,
2010 have been waived and barred. The petitioner is now estopped from
raising any such claims in terms of clause 25(ii) of the agreement.
6. I also agree with the learned counsel for the respondent that the
respondent, in view of the said clause, is absolved of all the liabilities. The
petition is not maintainable. The same is dismissed.
(MANMOHAN SINGH)
JUDGE
APRIL 29, 2013
