Delhi High Court
Mcd vs M/S Sharma & Associates & Anr on 1 August, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st August, 2018
+ O.M.P. (COMM) 485/2016
MCD ..... Petitioner
Through: None.
versus
M/S SHARMA & ASSOCIATES & ANR ..... Respondents
Through: Mr. A.K. Mishra and Mr. G.K.
Pandey, Advocates. (M-9811235958)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. In this petition, there has been no appearance for MCD since 23rd
March, 2015. Brief background of the case is that the Petitioner, had invited
a tender for civil works and the Respondent herein was the successful
bidder. The bid was accepted by the Petitioner @77.95% above the tender
amount of Rs.13,98,525/- and the work was to begin on 7th October, 1993.
The time for completion was 12 months. Due to various lapses, the
completion of the work got delayed but was finally completed on 30th April,
1998. The final bill of the Respondent was approved by the Petitioner on
30th June, 1998, however, payment was only made on 31st March, 2000 after
holding back a sum of Rs.1,40,000/- attributed to delay in completing the
work.
2. It is the case of the Respondent, that since he had sought for extension
of time for completion as per Clause 10(c)(c) of the General Conditions of
Contract, the deduction by the Petitioner of Rs. 1,40,000/-, and any other
allied expenses incurred by the Respondent, was completely unfounded.
Accordingly, clause 25 of the GCC was invoked and the matter was referred
to arbitration.
3. It was the case of the Petitioner that since the date of completion of
the work was to be 6th October, 1994, the claim of the Respondent before the
Ld. Arbitrator was barred by limitation, as the period of 90 days for
invoking the arbitration clause starts running from the stipulated date of
completion of the work, i.e., 6th October, 1994, herein.
4. The learned Arbitrator in his award dated 7th February, 2012 granted
the following reliefs:
a) Claim No.1 - Insofar as claim no.1 is concerned, the same relates to
amount withheld from the final bill for want of extension of time. The
Arbitrator has noted that the site was not provided by the Respondents
for a period between 17th March, 1994 to 20th September, 1994, as the
required space was not available. The extension of time was not
granted and, therefore, the amount was withheld from the final bill.
The Arbitrator has held that withholding of the amount is admitted for
want of approval and since the witness (RW-1), Shri Rajiv Jain, has
admitted the said document which proposed extension of time, which
was granted, the withholding was held to be incorrect. Thus, the
claim of Rs.1,40,000/- was granted in favour of the Respondents. The
same does not warrant any interference by this Court.
b) Claim No.2 - Similarly, claim no.2 relates to deduction of Rs.22,000/-
which was also made due to the withholding of the extension.
c) Claim No.3 - In claim No.3, the Respondents had raised a claim for a
sum of Rs.7,19,758/- towards escalation under clause 10(c)(c) of the
Agreement. Learned Arbitrator has, after going through the evidence
on record, applied the escalation as per clause 10(c)(c) and awarded a
sum of Rs.5,46,484/- which was the admitted amount by the
Petitioner. Learned counsel for the Respondents relies upon the
minutes dated 19th December, 2000 wherein the Department had itself
concluded that the delay in completion of work was not attributable to
the contractor. It is also noted that the work was completed by the
contractor on 30th April, 1998.
d) Claim No.4 - Insofar as claim no.4 is concerned, the Respondents
claimed a sum of Rs.3,00,000/- towards infructuous and overhead
expenses because the contract has been prolonged beyond the
contractual period. The Arbitrator has considered the wages paid to
chowkidars and supervisory staff and only granted Rs.83,065/- which
was the expenditure actually incurred. The said final bill also does
not warrant any interference by this Court.
e) Claim No.5 - This claim was for Rs.2,00,000/- towards loss of profit
due to prolongation of contract. The Arbitrator, however, in light of
the reliefs given above, rejected this claim of the Respondent, and
held that the Respondent is entitled to a sum totalling Rs.7,91,549/-
for Claims Nos.1, 2, 3 & 4.
5. Finally, the Arbitrator has granted interest @ 10% per annum.
Considering the transaction relates to 1998 and 1999 and the same stood
completed on 30th April, 1998 shows that the matter has been pending for
more than 20 years. The interest of 10% per annum, is accordingly
reasonable in the facts and circumstances of the case and also does not
warrant any interference. The objections raised by the Petitioner are all
factual in nature. The grounds raised are very general. The Petitioner seeks
to argue, in its objections, that the delay lies with the Claimant/Respondent,
whereas the document relied upon says exactly the contrary (Exhibit C-1/R-
1/1). The said document also records that the Claimant was not responsible
for the delay.
6. In view of the above, as also because none has appeared for the
Petitioner, the petition is dismissed.
PRATHIBA M. SINGH
JUDGE
AUGUST 01, 2018
Rekha
