Delhi High Court
Ramprastha Promoters And ... vs Army Welfare Housing ... on 16 August, 2018
$-23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:16th August, 2018
+ O.M.P.(I) (COMM.) 327/2018
RAMPRASTHA PROMOTERS AND DEVELOPERS PVT. LTD.
..... Petitioner
Through Mr.Narendera M.Sharma,
Mr.Abhishek Sharma, Ms.Prachi
Gupta and Ms.Pavitra Singh, Advs.
versus
ARMY WELFARE HOUSING ORGANISATION (AWHO) & ANR.
..... Respondents
Through Mr.A.K. Tewari and
Mr.Vikramaditya Singh, Advs. for R-
1.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CAV.735/2018
As counsel for the respondent enters appearance, caveat stands
discharged.
I.A.No.10913/2018 (Exemption)
Allowed, subject to all just exceptions.
O.M.P.(I) (COMM.) 327/2018
1. This petition under Section 9 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the 'Act') has been filed by the petitioner
inter-alia seeking the following reliefs:
OMP (I)(COMM) 327/2018 Page 1
"(a) Appoint a Local Commissioner preferably an Architect
or Civil Engineer to visit the Site at Sector-95, Village
Wazirpur, Gurugram, Haryana and undertake the
inspection and prepare joint inventory of (a) Complete and
incomplete works by comparing with the finished schedule
being part of Contract dated 13.07.2012;(b) Material
brought by Petitioner and laying at Site for incorporation in
the work; (c) Tool, plants other equipments belonging to the
vendors of the Petitioner and laying at Site; and (d)
Material laying at the office/ storage space constructed by
the Petitioner at Site in the presence of Authorized
Representative of Petitioner and Respondent No. 2 and
Respondent No. 1 and submit the Report before this Hon'ble
Court;
(b) Restrain Respondent No.1 from handing over Project
Site situated at Sector-95, Wazirpur, Gurugram, Haryana
till completion of the inspection and the joint inventory as
mentioned in prayer (a) above and filing of the Report
thereof before this Hon'ble Court.
(c) Direct the Respondent No. 1 to deposit in cash or furnish
a Bank Guarantee to the tune of Rs.29,47,24,000 /- (Rupees
Twenty Nine Crores Forty Seven Lacs And Twenty Four
Thousand Only) in favour of the Ld. Registrar General of
this Hon'ble Court subject to the final Award to be passed
by the Arbitral Tribunal;
(d) Direct the respondent no.1 to handover the all records,
receipts and data prepared by the petitioner, kept at the site
office.
(e) After preparation of the inventories by the Local
Commissioner, direct the Respondent No. 1 to handover the
equipments and material belonging to the Petitioner which
are lying at the Site office of the Petitioner situated at the
Project Site."
OMP (I)(COMM) 327/2018 Page 2
2. The petitioner had been awarded the work by the respondents for
construction of Composite Housing Project for personal use of the
members/allottees of the respondents on turnkey basis at Sector-95, Village
Wazirpur, Gurugram.
3. Alleging delays and abandonment of the work, the respondents
terminated the contract vide its notice dated 05.01.2018. By the same
notice, the respondents inter-alia appointed a Board of Officers for
preparation of an inventory of complete and incomplete items of work and
material in accordance with the condition 161(a) to (e) of the General
Conditions of the Contract (GCC). Paragraph 5 and 6 of the letter are
reproduced herein below:
"5. You are accordingly requested to report to the Project
Director, AWHO at Gurgaon in person or through an
accredited representative at 1000 hrs on 16 Jan 2018 and
subsequent days thereafter, when an inventory of completed
and incomplete items of work and material, if any left by
you at site will be made and recorded jointly as per
Condition No 161 (a) to (e) on Page 57 & 58 of General
Conditions of the Contract as agreed by the both parties in
Article of Agreement entered into by your firm and AWHO
on 31 Jul 2012 through a Board of Officers. In the event of
your failure to keep this appointment, inventory will
nevertheless be prepared by the Board of Officers
notwithstanding your absence and the same shall be fully
binding on you.
6. Your attention is drawn Condition 2 of Page No.34 of
General Conditions of the Contract as agreed by the both
parties in Article of Agreement entered into by our firm and
AWHO on 31 Jul 2012 regarding "Property,
Organisationship and Possession", solely belonging to the
Employer/ Organization. In view of the above, the
completed and incomplete items of work and all materials
OMP (I)(COMM) 327/2018 Page 3
left by you at site will be taken over by the Project Director
after the inventory as stated in para 5 above is prepared.
Further, after completion of inventories as aforesaid, your
entry to the site of work, without due permission from the
Project Director is prohibited."
4. The respondents further on 05.01.2018 encashed the bank guarantees
submitted by the petitioner.
5. By a separate letter dated 05.01.2018, the Board of Officers was
constituted with the mandate to complete making of the inventory by
16.02.2018.
6. The petitioner has filed the present petition alleging that the Board of
Officers took unilateral proceedings and did not make the inventory by joint
physical examination of the site and even denied access to the petitioner to
the site. Relying upon the condition 161 of the GCC as also the judgment of
this Court in Prima Developers v. Lords Co-op. Group Housing Society
Ltd., (2009) 110 DRJ 293 (DB), it is submitted by the counsel for the
petitioner that making of an inventory upon termination of the contract is not
only the contractual stipulation but also desirable and the same having not
been done jointly, the present petition has been filed.
8. On the other hand, the learned counsel for the respondents, who
appeared on advance notice, has produced before the Court the report
submitted by the Board of Officers with respect to the measurement of the
complete and incomplete work and materials, as also of the material
allegedly taken away by the petitioner from the site. A perusal of the said
compilation shows that in various meetings of the Board, the petitioner was
being represented by one Mr.Ashok Sharma, its Assistant General Manager.
OMP (I)(COMM) 327/2018 Page 4
The Board held its meetings on a number of dates starting from 16.01.2018
to 07.03.2018. The Board of Officers submitted its report to the respondents
on 22.03.2018.
9. Learned counsel for the respondents submits that a copy of this report
was sought to be served on the petitioner by hand, however, receipt of the
same was refused by the petitioner, whereafter the same was sent by the
respondents to the petitioner through speed post on 31.03.2018. I may only
note that the learned counsel for the petitioner has submitted that the copy
was not taken by the petitioner as it was illegible.
10. Learned counsel for the respondents has further submitted that
thereafter, the respondents floated a public tender for carrying out the
balance work on 26.01.2018 and finally the work was awarded to another
contractor on 10.08.2018. He submits that the petitioner has filed this
petition at the belated stage only to stall the work and cause further damages
to the respondents and allottee members.
11. I have considered the submissions made by the learned counsels for
the parties. Section 9 of the Act is to provide an immediate interim measure
of protection to a party to the arbitration agreement. In the present case, the
contract had been terminated by the respondents on 05.01.2018 and even the
bank guarantees of the petitioner had been encashed on the same date. By a
separate communication, the respondents had appointed a Board of Officers
to make the inventory in terms of Clause 161 of the GCC. It appears that the
petitioner duly participated in the proceedings without any protest. The only
alleged letters of protest on which reliance has been placed by the counsel
for the petitioner are dated 20.02.2018 to 14.05.2018. There is no
explanation given by the petitioner as to why it did not approach this Court
OMP (I)(COMM) 327/2018 Page 5
at any time earlier than 07.08.2018, when the present petition was filed.
Clearly, the petitioner was waiting on the sideline and woke up only because
the respondents have awarded the work to another contractor. As stated by
the learned counsel for the respondents, the work has recommenced.
Acceding to the prayer of the petitioner at this stage will stop the work from
being carried out by the new contractor appointed by the respondents and
cause irreparable damage to the respondents. The earlier exercise carried out
by the Board of Officers would also be rendered futile. Prima facie it is
evident that the petitioner had participated in this exercise and finding the
report to be not to its satisfaction, first kept quite and only on award of work
to another contractor, has filed the present petition.
12. In view of the above, I find no merit in the present petition and the
same is accordingly dismissed, leaving it open to the parties to agitate their
claims and counter claims before the Arbitral Tribunal. Any observation
made herein would not influence the Arbitral Tribunal while adjudicating
the disputes between the parties on its own merits. There shall be no order as
to cost.
Dasti.
NAVIN CHAWLA, J
AUGUST 16, 2018/Arya
OMP (I)(COMM) 327/2018 Page 6
