Ramprastha Promoters & ... vs Army Welfare Housing ...
2018 Latest Caselaw 5230 Del

$~28
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of Judgment: 31st August, 2018

+      FAO(OS) (COMM) 197/2018 & CM No.35405/2018 (stay)
       RAMPRASTHA PROMOTERS & DEVELOPERS PVT LTD
                                                      ..... Appellant
                 Through: Mr.S.Ganesh,    Sr.     Advocate      with
                          Mr.Narendera M. Sharma, Mr.Abhishek
                          Sharma, Ms.Prachi Gupta, Ms.Pavitra Singh,
                          Advocates.

                          versus

       ARMY WELFARE HOUSING ORGANISATION (AWHO) & ANR.
                                             ..... Respondents
               Through: Mr.A.K. Tewari and Mr.Vikramaditya
                        Singh, Advocates for respondents.

CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI
      HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

Caveat petition No.786/2018 Mr.Tewari, counsel for the respondents enters appearance. Accordingly, caveat petition stands disposed of.

CM.APPL.35406/2018 (Exemption) Exemption allowed, subject to all just exceptions.

The application stands disposed of.

FAO(OS) (COMM) 197/2018 & CM No.35405/2018 (stay)

1. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 read with Rule 13 of the Delhi High Court Rules.

2. The present appeal is directed against the order dated 16.08.2018 passed by the learned Single Judge of this Court by which a petition filed by the appellant herein under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the „Act‟) has been dismissed.

3. Some necessary facts which are required to be noticed for disposal of this appeal are that the appellant was awarded the work 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.

4. The contract was terminated by the respondents on 05.01.2018. The respondents appointed a Board of Officers for preparation of an inventory regarding complete and incomplete items of work and material. The appointment of the Board was in terms of the condition 161(a) to (e) of the General Conditions of the Contract (GCC) (hereinafter referred to as „GCC‟).

5. Learned senior counsel for the appellant submits that the Board has carried out the measurement in the absence of the representative of the appellant. It is contended that since there was no participation by the representative of the appellant serious prejudice has been caused to the rights of the appellant, as admittedly 68 percent of the work stands concluded and in case the measurement and details of complete and incomplete items of work and material is not prepared, the Arbitrators would be handicapped while deciding the disputes between the parties. It is contended that the learned Single Judge has erred in rejecting the petition firstly by observing that the appellant had participated in the proceedings being conducted by the Board of Officers. It is submitted by learned senior counsel that in fact at the first opportunity available, a communication was addressed to the

respondents dated 20.02.2018 bringing to their notice that no joint measurement has taken place to record the final work done despite repeated requests. Learned senior counsel for the appellant submits that the second ground on which the learned Single Judge has rejected the prayers so made is the ground of delay. Learned counsel explains that after the contract was terminated on 05.01.2018, the Board of Officers was appointed. The appellant was under the bonafide belief that the Board would carry out its duties faithfully and truly and the appellant made attempts to cooperate with them but the Board of Officers did not permit participation of the representative of the appellant at the time of actual physical measurements. Counsel contends that only in the month of March, 2018 when the report was received, the appellant realised that their submissions and objections filed to the report were rejected and thereafter they approached the Court.

6. Mr.Tewari, learned counsel appearing for the caveator/respondents submits that the Board of Officers was appointed simultaneously while terminating the contract of the appellant. It is contended that the appellant had duly participated in the measurement proceedings being conducted by the Board which is evident from the attendance sheet which has been produced in original along with report. It is contended that the Board of Officers is appointed in terms of the condition 161(a) to (e) of the GCC and once the appellant had participated, the appellant cannot raise the objections with regard to the appointment of the Board of Officers and the measurements conducted by them. Mr. Tewari also submits that in the entire proceedings all the representatives of the appellant were present and had duly participated and in fact on the last date the proceedings below mentioned, following observations were made. The original record has been

produced from where the observation is duly extracted. Same is reproduced below:-

"DETAILS OF THE BOARD PROCEEDING ON ITS EIGHTTH MEETING DATED 07 MAR 2018 HELD AT SITE OFFICE SECTOR-95, GURGAON IN CONNECTION WITH THE CANCELLATION OF THE CONTRACT WITH MS RAMPRASTHA PROMOTERS & DEVELOPERS PVT LTD

CA NO AWHO/GURGAON/08/2012 Attended by:-

(a) Col RD Singhal (Retd), Project Director, NCR -Presiding Officer

(b) Member:-

(i) Mr Satish Wagh, Project Incharge - Architect M/s NUPC

(ii) Mr Vinayak Singh, Project Manager - M/s NUPC

(iii) Mr Ashok Sharma, AGM - Contractor M/s Ramprastha Promoters and developers Pvt Ltd

(iv) Mr RP Chugh, Dy Project Director- AWHO Sector-95, Gurgaon

(c) In attendance:-

(i) Col Karunesh Kumar (Retd) - Project Director, Sector-9, Gurgaon Proceedings:-

1. M/s RPDPL submitted observation to Presiding Officer vide their letter No RPDPL/TK-95/BOO/AWHO/25/04 dt 01 Mar 2018 as asked vide Presiding Officer letter No D/U.3001/G;gaon/BOO/AWHO dt 22 Feb 2018.

2. Presiding Officer sought comments from M/s NUPC and AWHO for the observation raised by M/s RPDPL to be submitted by 03 Mar 2018.

3. M/s NUPC submitted para wise reply vide their letter No NUPC/AWHO/GURGAON/SEC-95/03/18/03 dt 03 Mar 2018 and also AWHO submitted comments vide their letter No D/03002/01/Tk/BOO/40/AWHO dt 03 Mar 2018.

4. Presiding Officer asked rep of M/s RPDPL that all the issues pertaining to your stores lying at site, T&P and storage/office accn have been resolved or any discrepancy is still existing, Mr.Ashok Sharma, AGM and rep of M/s RPDPL confirmed that all issues have been resolved.

5. Presiding Officer brought out that the balance and executed work quantities worked out by M/s NUPC were handed over to M/s RPDPL vide their various letters. M/s RPDPL was requested to

raised any discrepancies on the quantities, however M/s RPDPL vide their letter No RPDPL/TK-95/BOO/AWHO/25/04 dt 01 Mar 2018 brought out a general observation instead of quantifying the discrepancies. Adequate time has been given as per request of M/s RPDPL to reconcile the discrepancies, whereas reconciled quantities were not submitted till date.

6. Mr.Ashok Sharma, AGM requested Presiding Officer to submit the reply of the letter of M/s NUPC and AWHO for consideration.

7. The Presiding Officer informed all the members that board is concluded today and all the letter and reply submitted by Project Director AWHO Sector-95, M/s RPDPL and M/s NUPC would form part of Board Proceeding.

       Col RD Singhal (Retd.), Project Director, NCR     Mr.Satish Wagh
       Presiding Officer                                Project Incharge
                                                        M/s NUPC
       Mr.Vinayak Singh, Project Manager
       Rep of the Architect Consultant

       Mr.Ashok Sharma, AGM

Contractor M/s Ramprastha Promoters and developers Pvt. Ltd.

Mr.R P Chugh Dy Project Director, Sector-95, Gurgaon

In attendance:-

Col Karunesh Kumar (Retd) Project Director, Sector - 95, Gurgaon"

7. Mr.Tewari, counsel for the respondents also contends that the appellant is estopped from raising any dispute pertaining to the measurement once having signed the GCC in the presence of Board of Officers and secondly, in case the appellant was dissatisfied in the manner the Board of Officers had carried out the measurement, the appellant should have approached the Court at the first opportunity available and should not have waited till the time the work was awarded to another contractor. He contends

that there is no infirmity in the order passed by the learned Single Judge which would require any interference in the present proceedings.

8. We have heard the learned counsels for the parties.

9. The appellant herein had approached the learned Single Judge by filing a petition under Section 9 of the Act inter-alia seeking the relief of appointment of a Local Commissioner to prepare a joint inventory of the complete and incomplete work, material brought by the appellant, tools, plants and other equipments, material laying at the site. A restraint order was also sought to prevent the respondents from taking over the project site till the completion of the inspection and preparation of the joint inventory. Although, a prayer for restraining the respondents from invoking the bank guarantee was also made, yet the aforesaid prayer as informed, had become infructous as the bank guarantee has already been invoked. Prayer with regard to restraining the respondents from handing over the site has also become infructuous as the contract has been awarded to another contractor nor this prayer was pressed.

10. Counsel for the appellant has strongly urged before us that the measurement carried out by the Board of Officers does not reflect the correct and true facts. The objections to the report filed have been rejected and it is only upon rejection of the objections that the cause of action has arisen to approach this Court. The stand of the counsel for the respondents in the petition filed under Section 9 of the Act as well as before us is that once the appellant had participated in the proceedings before the Board of Officers, the appellant cannot seek an identical relief of joint measurement, merely because, the objections stand rejected. It is also submitted that the project has already been delayed by three years and now the work has already been

awarded to another contractor. Thus, the reliefs sought have become infructous. It is also contended that the learned Single Judge while rejecting the petition has granted leave to the parties to agitate their claims and counter claims before the Arbitral Tribunal. From the original record which has been produced before us we find that the attendance sheet reflects that the representative of the appellant appeared on every date of proceedings from 16.01.2018 to 07.03.2018 till the date when the proceedings were concluded. The minutes of the concluding proceedings which have been extracted hereinabove also reflect the presence of the representative of the appellant. Learned senior counsel for the appellant has contended that on each and every date when the representative of the appellant had appeared, he had protested and thus the presence of the representative would be of no consequence. It is also clarified by senior counsel for the appellant that the reliance placed by the respondents on the concluding paragraphs of minutes of GCC is also of no consequence as the issue was with regard to the measurement score and not with regard to the joint measurement, Mr.Tewari however, submits to the contrary. Once, it is admitted that the representative of the appellant was present on every date of proceedings and it is also admitted before us that he had raised an objection, the effect would be that in case the appellant was dissatisfied by the manner in which the measurement proceedings were being conducted in that case the appellant should have approached the Court at the first opportunity available and not waited till the month of August, 2018 just before the work was going to be awarded to another contractor. We may also note that the appointment of the board was in terms of condition 161(a) to (e) of the GCC thus have agreed to the same the appellant cannot now find fault with their appointment.

11. For the reasons aforstated, we find no infirmity in the order passed by the learned Single Judge. Accordingly, the appeal is dismissed.

12. At this stage, at the suggestion of learned senior counsel for the appellant it is argued that both the parties will be entitled to take photographs, videograph the building and the entire work in the presence of the representative of each other. This exercise will be commenced by Monday which is 03.09.2018 and exercise would be completed not later than 7 days from 01.09.2018.

13. The appeal is disposed of.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J AUGUTST 31, 2018 afa