Punjab State Power Corporation ... vs M/S Genus Power Infrastructure ...
2023 Latest Caselaw 15340 P&H

                                                                               2023:PHHC:117797

                               In the High Court for the States of Punjab and Haryana
                                                At Chandigarh


                                                                    FAO-3573-2023 (O&M)
                                                                    Date of Decision:-06.09.2023


                 Punjab State Power Corporation Ltd.                           ... Appellant



                                                     Versus



                 M/S Genus Power Infrastructure Ltd. and another              ... Respondents



                 CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

                 Present:-        Mr. Aman Pal, Advocate, and
                                  Mr. Japsehaj Singh, Advocate for the appellant.

                                                     *****

GURVINDER SINGH GILL, J.(Oral)

1. The appellant has preferred the instant appeal, aggrieved by order dated

20.2.2023 vide which learned Additional District Judge, Patiala has

dismissed the petition filed by the appellant under Section 34 of the

Arbitration and Conciliation Act.

2. The dispute arises out of a contract entered into between the parties

pertaining to supply of material for Erection/Conversion, testing,

commissioning of 11 KV Phase 3 wire lines & Dismantlement of 4 th wire

along with its allied material from existing 3 phase 4 wire system to provide

urban pattern supply to vilages and to connect rural water works, and in

respect of which the appellant had imposed a penalty of Rs.39,41,989/- on

account of delay in execution of work. The Arbitrator while accepting the MOHAN SINGH 2023.09.06 19:07 I attest to the accuracy and authenticity of this order/judgment FAO-3573-2023 (O&M) (2) 2023:PHHC:117797

claim of the respondent awarded the said amount i.e. Rs.39,41,989/- and has

also awarded the interest on the aforesaid amount and also interest on

delayed payment of Excise Duty etc. under Claim No.6.

3. The learned counsel while assailing the impugned order has drawn the

attention of this Court to the award wherein the learned Arbitrator while

discussing Claim No.1 pertaining to penalty of Rs.39,41,989/- has observed

that time was not the essence of the contract. Learned counsel, in order to

assail said observations has drawn the attention of this Court to the

agreement entered into between the parties (Annexure A-1) so as to contend

that there was a clear stipulation that the work had to be executed within 6 ½

months.

4. I have heard the learned counsel for the appellant.

5. Mr. Maninder Arora, Advocate, on behalf of respondent-M/s Genus Power

Infrastructure is present in the Court.

6. A perusal of the Arbitrator's award would indicate that it has been noticed

that there were several amendments in scope of work which continued till

19.7.2011 i.e. much beyond the time fixed for execution of the work. Rather,

it is also noticed that a witness examined by the appellant during the course

of cross-examination categorically stated that even the scope of work had

been increased without there being any proportionate increase in time. The

relevant extract is reproduced here under:

"...................................................................................

In fact, the very fact that Amendments continued to be issued till as late as 19.07.2011 would establish that it was not possible for the claimant to complete the work by 31.12.2009. It is on record that the claimant had applied for extension of time on at least 3 occasions, but no decision was taken thereon. Reference in this connection may be MOHAN SINGH 2023.09.06 19:07 I attest to the accuracy and authenticity of this order/judgment FAO-3573-2023 (O&M) (3) 2023:PHHC:117797

made to letters dated 13.01.2009 (C-6), 08.06.2010 (C-11) and 15.03.2011 (C-22). The witness of the respondent (RW-1) admitted during the course of his cross-examination that though the claimant had made requests for extension of time, but no action thereon had been taken by the respondent. It was also admitted by RW-1 that the scope of work had been increased, but proportionate increase in time had not been granted to the claimant. The reason for not replying to any of the letter seeking extension of time was that the grounds were general in nature or that the issues raised by the claimant stood resolved....................................."

7. The aforesaid observations would clearly indicate that it would not have been

possible for the respondent to have executed the work within the stipulated

period. The Court of learned Additional District Judge while disposing of

the petition under Section 34 of the Act, has taken note of the aforesaid facts.

In any case, the Court of learned Additional District Judge was not to sit in

appeal and the scope of interference is very limited. This Court does not find

any finding, which can be said to be perverse. No justification for any

interference is made out.

8. The appeal is sans any merit and the same is hereby dismissed.

                 06.09.2023                                       ( GURVINDER SINGH GILL )
                 mohan                                                     JUDGE


                               Whether speaking /reasoned          Yes / No
                               Whether Reportable                  Yes / No




MOHAN SINGH
2023.09.06 19:07
I attest to the accuracy and
authenticity of this
order/judgment