Uday Estate Pvt. Ltd. & Anr v. Schindler India Pvt. Ltd

NAVIN CHAWLA, J FEBRUARY 05, 2018/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP (COMM) 7/2018 Reserved on: 9th January, 2018, Date of decision: 5th February, 2018 UDAY ESTATE PVT. LTD. & ANR. ..... Petitioners Through: Mr.Sanat Kumar, Sr.Adv. with Mr.Anish Chawla, Adv. Versus SCHINDLER INDIA PVT. LTD. ..... Respondent Through: Mr.Aslam Ahmad and Ms.Shraddha Chaudhary, Advs. along with Mr.Sandeep Srivastava, AR in person. 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 24.08.2017 passed by the Sole Arbitrator in case Ref. No. DAC/605/8-14 in the matter of arbitration between M/s Schindler India Pvt. Ltd. Vs. M/s Uday Estate Pvt. Ltd. Anr. (hereinafter referred to as the 'Impugned Award') 2. Briefly stated, the facts giving rise to the present petition are that the petitioner no. 1 was constructing a five star hotel namely Hotel De- Aqua at Shastri Park, Delhi. After negotiations between the parties, an Agreement dated 28.12.2009 was entered into between the parties for delivery, installation and commissioning of five elevators at the hotel site. The total contract price for the five elevators was Rs.98 Lakhs Page 2 payable in three installments i.e. 23.5% advance upon signing of the Agreement; 65% upon intimation from the respondent that the material was available at their warehouse; and balance 11.5% was payable on physical completion of installation of the elevators. The material was to be dispatched within ten weeks' from the approval of layout and technical specifications. The physical installation was to be completed in ten weeks' from the date of start of installation work at the Site. 3. In term of the above Agreement, the petitioner paid 23.5% of the Contract value i.e. Rs. 23 Lakhs to the respondent. 4. The parties thereafter agreed to a change in specification of the elevators vide letter dated 15.06.2010. The schedule for supply was also changed, while specifically recording that all other terms and conditions of the original Contract shall remain the same and unchanged. 5. Yet another change was made in the Contract on 05.01.11 wherein again there was a change made in the specifications of the elevators as also the delivery schedule. The total value of the Contract was also revised to Rs. 96.90 Lakhs. 6. That on 07.02.2011, the respondent sent the layout of the drawings for approval to the petitioner. The same was approved by the petitioner on 07.03.2011. 7. It is the case of the petitioner that as the respondent had failed to supply the material within the agreed time, the petitioner vide its letter dated 18.04.2011, had brought out the failures on the part of the respondent. There is some controversy on this letter as the postal receipt shows that the said letter was posted only on 20.04.2011. The Arbitrator, in his Impugned Award also holds that the petitioner is guilty of anti- Page 3 dating this letter. This fact is necessary to be recorded as on 19.04.2011, the respondent had written a letter to the petitioner pointing out that the site is not ready and calling upon the petitioner to complete the pending activities which were delaying the final handing over of the elevators to the petitioner. By this letter, the respondent had further called upon the petitioner to give a proper room for material storage. Therefore, by anti- dating the letter dated 18.04.2011, the petitioner wanted to convey an impression as if the respondent's letter was an afterthought and aimed to hide its default, while, in fact, it was the other way around; it was the petitioner who wanted to hide its default and pass the blame on the respondent. 8. On 25.04.2011 the petitioner addressed a letter to the respondent making reference to its letter dated 18.04.2011 and further making a grievance that no guidance/consultation is forth coming from the end of the respondent. It was stated that