Delhi High Court
Govt Of Nct Of Delhi vs M/S Bharat Construction ... on 20 November, 2018
10
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1811/2013 & O.A. 107/2018, I.As. 11541-11542/2018
GOVT OF NCT OF DELHI ..... Plaintiff
Through: Ms. Warisha Farasat, Advocate with
Ms. Shruti Narayan, Advocate.
versus
M/S BHARAT CONSTRUCTION CORPORATION ..... Defendant
Through: Mr. Shiv Khorana, Advocate.
% Date of Decision: 20th November, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. On the last date of hearing, learned counsel for plaintiff had prayed
for some time so as to facilitate Principal Secretary, PWD, to take a decision
as he had been on leave and had recently rejoined his duties.
2. Today, learned counsel for plaintiff has handed over a letter dated 16 th
November, 2018. The relevant portion of the same is reproduced as under:-
"In continuation to this office above referred letters vide
which the status of seeking the withdrawal permission from the
competent authority informed. In this matter, the permission for
withdrawal of the case, as advised, is not received from the
Deptt i.e. PWD and the Sectt., GNCTD. Hence, your office is
requested in this circumstance as Ld. Counsel to proceed with
the continuation of the case before the Hon'ble Delhi High
Court. The above status of non acceptance of the withdrawal
permission by the competent authority is already informed to
your kind office.
It is for your information and for legal proceedings
accordingly please."
3. It is pertinent to mention that the present suit has been filed by the
plaintiff-State for recovery of Rs.2,84,74,094/- along with interest @18%
per annum on the ground that the defendant did not complete the
construction work of the Orthopaedic Block at the LNJP Hospital by 26 th
November, 2004.
4. The defendant had filed its claims before the Arbitrator in accordance
with the agreed Dispute Resolution Mechanism between the parties.
5. However, the plaintiff's claim for compensation under Clause 2 of the
Agreement was not referred to the Arbitrator as it was an excepted matter.
6. The Arbitrator in his award dated 27th June, 2016, has held that the
plaintiff was responsible for the delay in execution of the project.
7. Learned counsel for defendant states that in view of the aforesaid
finding by the learned Arbitrator, the present suit is liable to be dismissed.
8. The Supreme Court in J.G. Engineers Private Limited Vs. Union of
India and Another, (2011) 5 SCC 758 has held as under:-
"22. In view of the above, the question whether the appellant was
responsible or the respondents were responsible for the delay in
execution of the work, was arbitrable. The arbitrator has
examined the said issue and has recorded a categorical finding
that the respondents were responsible for the delay in execution
of the work and the contractor was not responsible. The
arbitrator also found that the respondents were in breach and the
termination of contract was illegal. Therefore, the respondents
were not entitled to levy liquidated damages nor entitled to claim
from the contractor the extra cost (including any escalation in
regard to such extra cost) in getting the work completed through
an alternative agency. Therefore, even though the decision as to
the rate of liquidated damages and the decision as to what was
the actual excess cost in getting the work completed through an
alternative agency were excepted matters, they were not relevant
for deciding Claims 1, 3 and 11, as the right to levy liquidated
damages or claim excess costs would arise only if the contractor
was responsible for the delay and was in breach.
23. In view of the finding of the arbitrator that the appellant was
not responsible for the delay and that the respondents were
responsible for the delay, the question of the respondents levying
liquidated damages or claiming the excess cost in getting the
work completed as damages, does not arise. Once it is held that
the contractor was not responsible for the delay and the delay
occurred only on account of the omissions and commissions on
the part of the respondents, it follows that the provisions which
make the decision of the Superintending Engineer or the
Engineer-in-charge final and conclusive, will be irrelevant.
Therefore, the arbitrator would have jurisdiction to try and
decide all the claims of the contractor as also the claims of the
respondents. Consequently, the award of the arbitrator on Items
1, 3 and 11 has to be upheld and the conclusion of the High
Court that award in respect of those claims had to be set aside as
they related to excepted matters, cannot be sustained."
(emphasis supplied)
9. At this stage, learned counsel for plaintiff informs this Court that the
plaintiff has challenged the Arbitral Award dated 27th June, 2016 before the
the Court of Mr. Ramesh Kumar-II, Additional District Judge (Central), Tis
Hazari Courts, Delhi, by way of Arb.Pet. No.84860 of 2016.
10. In the opinion this Court, as long as the finding of the Arbitrator
remains that the defendant was not responsible for the delay, the question of
the plaintiff levying liquidated damages or claiming compensation would
not arise.
11. Consequently, this Court is of the view that the present suit is barred
and is not maintainable. However, it is clarified that the plaintiff would be
at liberty to file the suit if the finding of the Arbitrator is overturned in
Arb.Pet. No.84860 of 2016 or proceedings arising therefrom.
12. Accordingly, the present suit and applications are dismissed with
liberty to the plaintiff to file a fresh suit in the event the finding of the
Arbitrator with regard to the delay is overturned.
13. Registry is directed to issue to an authorised representative of the
plaintiff a certificate authorizing him/her to receive back from the Collector
the full amount of the Court fee paid by it in the present suit.
MANMOHAN, J
NOVEMBER 20, 2018
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