Brahmaputra Cracker & Polymer Ltd v. Rvr Projects Pvt Ltd

A. K. CHAWLA, J

S. RAVINDRA BHAT, J MAY 01, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 01.05.2018 + BRAHMAPUTRA CRACKER & POLYMER LTD..... Appellant Through: Mr. N.L.Ganpathi, Advocate. versus RVR PROJECTS PVT LTD ..... Respondent Through: Mr. Sridhar Potaraju, Ms.Ankita Sharma and Mr.Prabhat Kumar, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE A.K. CHAWLA A.K.CHAWLA (ORAL) Caveat No. 290/2018 Since the counsel for the caveator has put in appearance the caveat stands discharged. CM APPL. 13620/2018 (for exemption) Allowed, subject to all just exceptions. FAO(OS) (COMM) 59/2018 & CM APPL. 13621/2018 (for stay) 1. This appeal under Section 13 of the Commercial Courts, Commercial Division, Commercial Appellate division of High Courts Act, 2015 read with Section 37 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act') challenges the judgment of the learned Single Judge dismissing the appellant's objections questioning an arbitral Award dated 15.11.2017 in part. 2. Concisely, the dispute amongst the parties is the outcome of a contract for civil and structural works of Linear Low Density Polyethylene and High Density Polyethylene (LLDPE/HDPE) Unit at Lepetkata, Assam, awarded to the respondent (hereafter 'claimant') against its successful bid. Under the contract, Engineers India Limited was the Engineer-in-Charge of the subject project/contract. For the purposes of the subject matter of the appeal, it would suffice to say, the contract was not an "item rate tender" but was a "percentage rate tender". Estimated contract value as per the work order was `61,66,31,061.81/- and the time for completion undertaken by the claimant was 18 months from the date of acceptance/commencement of the contract i.e. 17.12.2009. In terms thereof, the intended date of completion was 16.06.2011. Work was actually completed on 30.10.2013 and the completion certificate issued on 11.12.2014 alongwith the other connected works. Disputes arose amongst the parties, when at the time of release of the final bill, the appellant made deductions against its paid RA bills (RA 4 & RA 5) towards escalation against structural steel and reinforcement bars amounting to `1,70,84,519/- and `74,03,223/- on 21.10.2014 and 03.11.2014 respectively, in all amounting to `2,44,87,742/-, already paid during the execution of the work. The claimant represented against the amounts. The appellant released payments of `1,33,99,611/- and `68,97,736/- on 11.08.2015 but held back `41,90,393/-. For the said amount and other claims, the claimant invoked the arbitration clause and filed its claims. 3. The claim was contested to by the appellant. The arbitral tribunal rendered the award favouring the respondent on three counts; (i) `41,90,393/-; (ii) interest @2% higher than the current rate of interest (as defined under the Interest Act, 1978) prevalent on the date of the award from 11.08.2015 till the date of payment/realization on the foregoing amount; and, (iii) the claimant was to arrange for joint measurement of the bill towards work done but missed in the final bill being subject matter of Claim No.2, which related to construction of RCC Pavement. Aggrieved, the appellant filed objections under Section 34 of the Act. By the impugned judgment the learned Single Judge allowed the objections partly and set aside the impugned award as regards the award of Claim No.2, upholding the other claims awarded by the learned Arbitrator. Further aggrieved, the appellant has now preferred the appeal under Section 37 of the Act. 4. Before the Arbitrator, the claimant had made the following claims:- (1) Rs.41,90,393/- towards amount retained against Escalation Bill; (2) Rs.6,47,066/- towards work-done, missed to measure in Final Bill; (3) Rs.26,94,202/- towards interest @ 18% on Hold amount from 28.03.2015 to 31.12.2016 towards claim against Escalation Bill (RA4 & RA5); (4) Rs.14,96,566/- towards extra BG charges paid for extension of BG's against PG, PRS and increased value of amount;