M/S National Highways Authority O India v. M/S Oriental Structual Engineers Pvt Ltd

RAJIV SAHAI ENDLAW, J. JANUARY 16, 2015 "gsr"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th January, 2015 + O.M.P. No.1640/2014 M/S NATIONAL HIGHWAYS AUTHORITY OF INDIA ….. Petitioner Through: Mr. Sudhir Nandrajog, Sr. Adv. with Ms. Tanu Priya Gupta, Adv. Versus M/S ORIENTAL STRUCTURAL ENGINEERS PVT. LTD. ….. Respondent Through: None. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition, under Section 34 of the Arbitration and Conciliation Act, 1996, seeks setting aside of the unanimous arbitral Award dated 22nd August, 2014, of the Arbitral Tribunal comprising of a nominee of the petitioner and the nominee of the respondent and a presiding Arbitrator of the choice of the nominees of the two parties, to the extent the same allows the Claims No.2 to 6 of the respondent against the petitioner (claim No.1 of the respondent against the petitioner was disallowed). 2. The petition came up before the Court first on 22nd December, 2014 when after hearing extensively the senior counsel for the petitioner, orders were reserved. 3. The arbitral award emanates from the claims of the respondent against the petitioner under the contract dated 29th September, 2005 for a price of Rs.115,24,02,683/- between the parties for construction by the respondent of New Four Lane Jhansi Bypass on National Highway 25 in the State of Uttar Pradesh for the petitioner, with the stipulated date of start as 21st November, 2005 and the stipulated date of completion as 20th May, 2008. The works were however completed only on 31st August, 2010. 4. The petitioner seeks setting aside of the arbitral award to the extent:- (i) It allows the Claim No.2 of the respondent in the sum of Rs.89,66,783/- with interest for wrongful certification of Bills of Quantity for construction of reinforced earth, precast concrete facia panel, RCC crash barrier etc. for the period till 31st August, 2010 and holds the respondent entitled to further sums on similar basis for period subsequent to 31st August, 2010 and till final account in respect of wrong quantification; (ii) It allows Claim No.3 of the respondent in the sum of Rs.30,65,779/-towards delay till 31st August, 2010 in payments of the admitted amounts; (iii) It allows Claim No.4 of the respondent in the sum of Rs.3,21,64,657/- for non-payment of price adjustment upto 31st August, 2010 and in a sum of Rs.60,87,471/- towards interest thereon till 31st August, 2010 and further finds the respondent entitled to payment of correct quantification of price adjustment in subsequent IPCs till final account, together with interest thereon; (iv) It allows Claim No.5 of the respondent in the sum of Rs.16,09,647/- towards additional cost due to increase in royalty on various minerals for the quantities executed till February, 2010 with interest @ 10% compounded monthly from 9th March, 2010 till the completion of the work and simple interest @ 10% per annum including on compound interest aforesaid, from 1st September, 2010 till the date of actual payment; (v) It allows Claim No.6 of the respondent in the sum of Rs.2,68,69,295/- on account of price escalation till 31st August, 2010 and in a sum of Rs.48,29,367/- towards interest @ 10% per annum thereon compounded monthly and simple interest @ 10% per annum from 1st September, 2010 till the date of actual payment; 5. The petitioner seeks setting aside of the said arbitral award on the grounds of:- (a) The Arbitral Tribunal having wrongly read the Contract between the parties to conclude that certain works required to be carried out were not part of the Contract when in fact as per the Contract they were not to be measured separately and were to be deemed to be incidental to the work under the Contract. (b) Allowing of certain claims of the respondent by the Arbitral Tribunal amounting to the respondent being paid twice for the same work. (c) The delays in payment of the admitted amounts by the petitioner to the respondent being on account of the respondent failing to comply with the obligations it was requ