National Highways Aurhotiry of India v. Somdutt Builders-Ncc-(Jv) (Joint Venture)

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) AUGUST 02, 2013 sn

FAO(OS) 238/2011 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 02nd August, 2013 + FAO(OS) 348/2013 NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Appellant Through : Ms. Taru Priya Gupta, Mr. Mukesh Kumar Verma and Ms. Meenakshi Sood, Advs. versus SOMDUTT BUILDERS-NCC-(JV) (JOINT VENTURE) ..... Respondent Through : None. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) CM 11711/2013(exemption) Allowed, subject to all just exceptions. The application stands disposed off. FAO(OS) 348/2013 & CM 11710/2013(stay) This appeal is directed against the judgment and order made by learned Single Judge on 10th May, 2013 in OMP No. 105/2010. The respondent Contractor had made certain claims in arbitration which were referred in accordance with the contract between the parties to the arbitral tribunal. The latter by its award dated 3rd October, 2009 granted two claims; at the same time, rejected appellant NHAI's counter-claims. The Contractor FAO(OS) 238/2011 Page 2 was successful in respect of two claims. The award of the arbitral tribunal dated 3rd October, 2009 was challenged by the appellant, i.e. National Highway Authority of India (NHAI). The impugned judgment rejected that petition under Section 34. 2. At the outset, this Court notices that both the claims, which the respondent Contractor successfully agitated before the arbitral tribunal, (the determination of which were affirmed by the learned Single Judge), were identical about the subject matter of similar claims urged before this Court in certain other appeals. The first claim pertains to clearing and grubbing of removal of stumps and roots of trees and allied works, such claims were held to be with the scope of original work and consequently, the decisions of the arbitrators concerned were upheld by various judgments. For instance, in National Highways Authority of India v. PCL-SUNCON J.V. decided on 27th April, 2013, it was stated as follows:- "In our view the real issue, thus, is not whether the work of back filling after removal of top soil forms part of clearing and grubbing activity as, admittedly, there was no back filling carried out. The real controversy is as to whether if back filling had been done, that work is liable to be excluded from the work of embankment construction by the respondent. There is nothing shown to us whereby the construction of embankment can be said to have been done in the manner where effectively, the lower part of the embankment is made only by carrying out the activity of back filling. The embankment being separate item, it has to be fully paid for. Had there FAO(OS) 238/2011 Page 3 been any force in the appellant's submission, the appellant would have placed before the arbitral tribunal evidence to show that the engineer had required the contractor to carry out back filling with soil up to a particular level (i.e., up to 150 mm or less), and that the design of the embankment was such as to be constructed over such back filled soil surface. No such material was placed before the arbitral tribunal. The appellant sought to make deductions, after having initially paid the amounts for making of embankment, by claiming that the initial 150 mm of the embankment work should be considered/deemed as work covered by the activity of clearing and grubbing. This, obviously, was impermissible." 3. The Court notices that in para 18 of the impugned order, the learned Single Judge had adverted to decisions of the FAO(OS) 123/2011(National Highway Authority of India v. Oriental Structure Engineers Ltd) and another connected appeal FAO(OS) No.136/2012, FAO(OS) No.47/2012 (National Highway Authority of India v. Hindustan Constructions Co. Ltd.) decided on 22nd November, 2012 and FAO(OS) No.424/2010 (National Highways Authority of India v. PCL-SUNCON J.V.) decided on 27th April, 2013, all of which held that such claims have been validly granted by the arbitral tribunals. This posi