Subhash Infraengineers Pvt. Ltd v. Union of India

NAVIN CHAWLA, J FEBRUARY 23, 2018/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P.(COMM.) 38/2018 Reserved on:9th February,2018 Date of decision: 23rd February, 2018 SUBHASH INFRAENGINEERS PVT. LTD. ..... Petitioner Through: Mr.Anil Mittal, Adv. versus UNION OF INDIA ..... Respondent Through: Mr.Jagjit Singh, Mr.Narayan Dev, Advs. for Railways. 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 Award dated 24.08.2017 passed by the Sole Arbitrator in the Arbitration Proceedings held between the parties. 2. The disputes between the parties relate to the Award of work of earth work in filing, embankment and cutting, provision of the blanketing material, construction of bridges and other allied works between K.M 49.00 to K.M 74.4 on Rewari - Jhajjar - Rohtak section in connection Page 2 with Rohtak - Jhajjar - Rewari new railway line in favour of M/s Subhash Chander & Co. (the predecessor of the petitioner, herein). 3. The entire work were required to be completed within 18 months from the date of issue of acceptance letter dated 04.07.2007 i.e. on or before 03.01.2009. The work was, however, completed on 28.02.2011. During the execution of the work, the respondent granted the first Extension of Time vide its letter dated 12.02.2009 without levy of penalty and with the benefit of Price Variation Clause (PVC). Thereafter, further extension was granted vide letters dated 04.08.2009, 07.08.2009, 10.03.2010 and 20.06.2010, again without penalty, however, without the benefit of PVC. By letter dated 17.03.2011, ex post facto extension was granted by the respondent, again without penalty, however, without the benefit of PVC. The second and final Addendum cum Corrigendum to the Contract Agreement was executed between the parties on 14.10.2011 and the final payment of Rs.54,59,691/- was released in favour of the petitioner. 4. The petitioner, inter-alia claiming that, as the delay had occurred due to the reasons attributable to the respondent, therefore, the petitioner was entitled to the extension of time with PVC, raised various claims and this Court vide order dated 10.02.2014 passed in Arb. P.234/2013 appointed the Sole Arbitrator to adjudicate the disputes that had arisen between the parties. 5. The Arbitrator by way of the Impugned Award has rejected all the claims of the petitioner. 6. The primary contention of the petitioner against the Impugned Award is that the Arbitrator has failed to consider that the delay in Page 3 execution of the work was for the reasons attributable to the respondent and it is for this reason that, while granting extension of time, the respondent had not levied any penalty on the petitioner. The challenge to the Impugned Award on this aspect can be better appreciated from the following paragraph of the petition: "The inference drawn by the Ld. Arbitrator is not based on the facts and material placed on record and it is against the public policy as brought out at para 6, the delay in completion was due to non release of drawings, non completion of the bridges work interested to other agencies. The inference of the Arbitrator that the claimant did not protest against the denial of price variation clause till February,2012 is in correct. The protest were made vide letters dated 13-8-2010, 22-11-2010, 10-1-2011 and 17-5- 2011. Copies of letters dated 13-8-2010, 22-11-2010 and, 10-1-2011 are collectively Annexure-M hereto. It may be mentioned here that even in letter dated 29-11-2010 (Annexure-G) also it has been confirmed by the respondent that the request for PVC made by the claimant vide letter dated 13-8-2010 was being examined and accordingly action will be taken." 7. I am unable to agree with the submission made by the learned counsel for the petitioner. The Arbitrator in his Impugned Award has considered the entire correspondence exchanged between the parties. The Arbitrator