The Union of India v. M/S City Promoter & Buildwell Pvt. Ltd

NAVIN CHAWLA, J FEBRUARY 23, 2018 RN

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP 397/2015 Reserved on: 12th January, 2018 Date of decision :23rd February, 2018 THE UNION OF INDIA ……Petitioner Through: Mr.Manish Mohan, Adv. Versus M/S CITY PROMOTER & BUILDWELL PVT. LTD. .... Respondent Through: Mr.M.K.Singh, Mr.Rahul Pandey, Advs. 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 26th March, 2015 passed by the Sole Arbitrator in so far as it allows claim nos.1, 2, 4 and 5 of the respondent. 2. The disputes between the parties are in relation to agreement No.CEDZ-36/2009-10 for provision of Single Officers Accommodation Adjacent to Naval Officers Mess (Varuna) at Delhi Cantt. entered into between the parties on 5th November, 2009. Some of the terms of the said agreement that are relevant for the purpose of the present adjudication are reproduced herein below:- Page 2 "IN LIEU OF IAFW-2162 (REVISED-1960) MILITARY ENGINEER SERVICES (NOTICE OF TENDER) xxxxxx 4. The work is to be completed within the period as indicated in the aforesaid Appx 'A' (in accordance with the phasing if any, indicated in the tender) from the date of handing over site, which will be about a week after the date of acceptance. APPENDIX 'A' TO NOTICE OF TENDER (NIT NO.09/CEDZ/2008-09) xxxxxx "Para 4 Period of completion : 18 (eighteen) Months." SCHEDULE 'A' NOTES (contd…./-) xxxxxx 13. Period of completion. The entire work covered under this contract shall be completed within 18(Eighteen) months from the date of handing over of site." 3. The petitioner claims that the date of completion in the contract was meant for completion of all works to be executed under various parts of Schedule A, except Schedule 'A' Section XVI which catered for manning and operation of lifts from the date of commissioning till expiry of defects liability period (item no.2 of Schedule 'A' Section XVI) and comprehensive maintenance of lifts for a period of 48 months from the date of expiry of defects liable period (item no.1 of Schedule 'A' Section XVI). It was further contended that the entire work was to be completed within a period of 78 months. However, in the Work Order, the completion period was considered as 18 months keeping in view only Page 3 the work mentioned in Schedule 'A' Note No.13 on page 17 of the Contract Agreement. 4. The petitioner claims that the respondent on 10th October, 2012 also signed an amendment to the contract recording the above understanding of the parties. The said amendment, so far as is relevant to the present adjudication is reproduced hereinbelow:- "FIRSTLY: The Schedule 'A' note No.13 on Srl. Page No.17 be deleted in toto and in lieu substituted as under:- 13.0 The period of completion for the entire work under this contract shall be 78 (Seventy Eight) Months from the date of commencement shown in the first Work Order placed by the GE in accordance with phasing as indicated hereinafter. (a) Phase-I The work under this phase shall comprise of all works except Serial Item No.1 and 2 of Schedule 'A' Section XVI (b) Phase-II The work under this phase shall comprise of works included in Serial Item No.2 of Schedule 'A' Section XVI (c) Phase-III The work under this phase shall comprise of works included in Serial Item No.1 of Schedule 'A' Section XVI Period of completion shall be 18 months from date of commencements shown in first Work Order. Period of completion shall be 12 months from the date next to date of completion of Phase-I. Period of completion shall be 48 months from the date next to date of expiry of defect liability period. 13.2 Site for Phase-II shall be handed over immediately after the date of completion of Phase-I. Accordingly, site for Page 4 Phase-III shall be handed over immediately after the date next to date of expiry of defect liability period." 5. The petitioner further contends