Divine Infracon Pvt Ltd v. Vistar Constructions Pvt Ltd

NAVIN CHAWLA, J OCTOBER 09, 2018/Shikhar/Arya

OMP(COMM) 186/2016 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 16th July, 2018 Date of decision : 09th October, 2018 + O.M.P. (COMM) 186/2016 DIVINE INFRACON PVT LTD ..... Petitioner Through: Mr.Sandeep P. Agarwal, Sr. Adv. with Mr.Soumyajit Pani, Mrs.Rehana Ahmed, Mr.Chittaranjan Singh and Mr.Inayat Ahmed, Advs. Ahmed, Advs. versus VISTAR CONSTRUCTIONS PVT LTD ..... Respondent Through: Mr.Ranvir Singh, Adv. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996(hereinafter referred to as the "Act") has been filed by the petitioner challenging the Arbitral Award dated 23.08.2014 (hereinafter referred to as the "Impugned Award") awarding a total amount of Rs 3,01,07,609/- along with future interest @ 9% on the principal amount of Rs 2,25,30,812/- as also cost of Rs.5,00,000/- in favour of the respondent and against the petitioner. The counter claims of the petitioner have also been rejected by the Impugned Award. OMP(COMM) 186/2016 Page 2 2. The petitioner was the successful bidder in a tender/bid conducted by the Delhi Development Authority for allotment of Plot No.4, Sector 13, Dwarka City Centre, Dwarka, New Delhi and a Conveyance Deed dated 10.08.2009 was executed. Under the terms of the tender the petitioner was to setup and operate a hotel on the aforesaid Plot in a timely manner. 3. Subsequently, the petitioner entered into Work Orders/ Letter of Intent with the respondent for Interior decoration works of various parts of the hotel. The disputes between the parties are in relation to these below mentioned Work Orders/Letter of Intent:-  Work Order dated 11.03.2010 referred to by the parties as "Work Order for ID(Interior Decoration)- Rooms(4-5 Floor) works to Park Plaza Hotels at plot No.4, Sector-13, Dwarka New Delhi-110075";  Work Order dated 03.06.2010 referred to by the parties as "Work Order for ID(Interior Decoration)- Corridor(4-5 Floor) works to Park Plaza Hotels at plot No.4, Sector-13, Dwarka New Delhi-110075";  Letter of Intent dated 10.06.2010 referred to by the parties as "LOI for ID- 1st and 2nd floor part works to Park Plaza Hotels at plot No.4, Sector-13, Dwarka New Delhi-110075" 4. Clause 1 of the Work Order dated 11.03.2010 stipulates the Contract Price to be Rs 5,67,90,000/- excluding Service Tax and VAT OMP(COMM) 186/2016 Page 3 and also lays down conditions wherein the said "Contract Price" can be adjusted. The same is reproduced hereinbelow:- "1.0 Contract Price 1.1 The Contract Price shall be in the sum of Rs.56,790,000 (Indian Rupees Fifty Six Million Seven Hundred Ninety Thousand Only) excluding Service Tax + VAT as applicable, which shall include, but not limited to the Scope of Works as set out in the "Summary of Package (A) Contract Price" which is attached herewith as Bill of Quantities for ID-Rooms Works. 1.2 The Contract Price is inclusive of, prevailing taxes and duties except VAT and service tax, as on 11th March 2010 (i.e. the date of issue of Work Order): The contract Price shall be adjusted upwards or downwards to take account of any rise or fall respectively of the prevailing taxes and duties and/or imposition of any new tax, duty, etc., by the Statutory Boards during the Contract Period. 1.3 No adjustments will be allowed in respect of the Contract Price for any fluctuations in the cost of labour, materials, equipment, services, insurances, freight charges, exchange rates, etc., that may occur during the Contract Period or any extended time authorised under the Conditions of Contract. 1.4 No adjustments and/or claims will be allowed for any items in the Bills of Quantities which are deemed to include for all materials, labour, preliminaries, profits, etc., for the due, proper and complete execution of each item and comply fully with the respective drawings and specifications and trade preambles in the Contract. OMP(COMM) 186/2016 Page 4 1.5 This shall be an item rate contract and rates are inclusive