Delhi High Court

Bharat Immunolagicals And ... vs M/S Uppal Engineering Company Pvt ... on 8 February, 2016

Author: Badar Durrez Ahmed

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 08.02.2016

+       FAO(OS) 17/2016
BHARAT IMMUNOLAGICALS AND
BIOLOGICAL CORP. LTD                                           ... Appellant

                                         versus

M/S UPPAL ENGINEERING COMPANY PVT LTD ... Respondents
Advocates who appeared in this case:
For the Appellant     : Mr R.B. Singhal, Sr Advocate with Mr Anshuj Dhingra
For the Respondent    : Mr Ritesh Khatri


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CM No. 1469/2016 (condonation of delay in re-filing) The delay in re-filing is condoned.

The application stands disposed of.

FAO(OS) 17/2016 and CM Nos. 1466-67/2016

1. The learned counsel appearing on behalf of the appellant has flagged

three issues. The first point urged by him is that the issues which were

noted by the learned Arbitrator have not been categorically dealt with or

decided by the Sole Arbitrator based on any reasoning. The second point

that was urged by the learned counsel for the appellant was that the learned

Arbitrator awarded loss of profit to the respondent and at the same time

granted the other claims of the respondent which, according to the learned

counsel for the appellant, the learned Arbitrator ought not to have done

because that would amount to benefitting the respondent twice over. The

third point urged by the learned counsel for the appellant was with regard to

the payment of interest. He submitted that the date from which the interest

ought to be payable, in any event, should be from the date of the award and

not from 07.08.1995.

2. We have heard the learned counsel for the parties. Insofar as the first

plea is concerned, we find that five issues were framed with the consent of

the parties by the learned Arbitrator. The issues framed were as under:-

"a. Whether the claimant has breached the contract and failed to comply with the terms and conditions of the contract;

b. Whether the respondent has breached the contract and failed to comply with the terms and conditions of the contract;

c. Whether the claims of the claimant are in consonance with reference order, and whether the claims can be raised at all;

d. Whether the respective claims / counter claims are legally tenable;

e. Which party has breached the contract and whether the breach goes to the root of the contract. If so, the injured party is entitled to what compensation in respect of each of its claims."

In the very next paragraph, the learned Arbitrator noted that the above

issues would hinge on as to how the contract was executed and whether the

parties had carried out their respective contractual and reciprocal

obligations in letter and spirit of the contract. According to the learned

Arbitrator this required consideration of the following aspects:-

"a. Whether Bulandshahar Khurja Development Authority (BKDA) clearance was required, who was to arrange it, and if it was obtained.

b. Whether the drawings good for construction were issued in time to the Claimant.

c. Whether the Payments were made in time by the Respondent.

d. Whether the Respondent was required to provide electricity to the Claimant.

e. Whether the Respondent was within its rights to delay the decision regarding the extension for time, requested by the claimant.

f. Whether site Organisation was properly manned by the parties and whether sound decisions were given at site.

g. Whether the Respondent had the right to terminate the contract and was this power actually exercised in terms of the contract.

h. Whether there is any legal bar to the parties raising the claims in the present proceedings.

i. My impressions after the site visit."

Each of the aspects quoted above [i.e., (a) to (i)], were analysed by the

learned Arbitrator in detail. As examples we may point out that the issue

with regard to the clearances from the Bulandshahar Khurja Development

Authority were analysed in paragraph 13, the issue with regard to drawings

was considered in paragraph 14 which ran into several sub-paragraphs.

Similarly, the aspect of release of payments to the claimant was considered

in paragraph 15 etc. In fact each of the aspects (a) to (i) have been dealt

with by the learned Arbitrator extensively in the award. Based on his

conclusions on these aspects, the learned Arbitrator arrived at his

conclusions on the five issues which had been framed. The conclusions are

recorded in paragraph 22 of the award which reads as under:-

"22. Overall findings in respect of issues framed. 22.1 In light of the analysis of the relevant factors as above, my findings, outlined after each issue framed in bold lettering, are as follows:-

"a. Whether the Claimant has breached the contract and failed to comply with the terms and conditions of the contract. The Claimant has not breached the contract and did not fail to comply with the terms and conditions of the contract.

b. Whether the Respondent has breached the contract and failed to comply with the terms and conditions of the contract. The Respondent has breached the contract and did not comply with the terms and conditions of the contract.

c. Whether the claims of the Claimant are in consonance with reference order; and whether the claims can be raised at all. The Claims of the Claimant are in consonance with the reference order and there is no bar to the Claimant raising its claims.

d. Whether the respective claims counter-claims are legally tenable. The respective claims/ counter-claims are legally tenable.

e. Which party has breached the contract and whether the breach goes to the root of the contract. If so, the injured party is entitled to what compensation in respect of each of its claims. The Respondent has breached the contract and the breach goes to the root of the contract. The Claimant is entitled to compensation/damages. The quantum is reflected in the text hereafter."

3. Therefore, we are not in agreement with the submission made by the

learned counsel for the appellant that the issues which had been framed had

not been dealt with by the learned Arbitrator and that there was no

reasoning behind the conclusions arrived at by the learned Arbitrator. On

the contrary, as noted above, the learned Arbitrator examined not only the

issues but the sub-issues which arose in great detail and arrived at

conclusions of fact and law and thereupon gave his final findings on the

five issues which had been formulated.

4. We now move on to the second point which had been urged by the

learned counsel for the appellant that the learned Arbitrator could not have

allowed loss of profit and the other claims at the same time because one

negated the other. Here, also, we cannot accept the plea raised by the

learned counsel for the appellant for the simple reason that the loss of profit

(under claim No. 1) was in respect of the balance work due to the fact that

the completion was prevented on account of wrongful termination of the

contract by the appellant. We also note that though the respondent/claimant

had claimed a sum of Rs 30,23,700/- which was only partly allowed to the

extent of Rs 15,90,000/-. Insofar as the other claims are concerned they

pertain to the period prior to the termination of the contract and have not

been factored into the computation of loss of profit for balance work.