SANRACHNA INDIA INC Vs. A B HOTELS LTD

JUDGEMENT

(1.) This is petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the 'Act') filed by the petitioner firm for the appointment of a Local Commissioner for carryingout the measurement work done by the petitioner.

(2.) Briefly stated the facts leading to this petition are that vide two separate work orders dated 26.2.2004, the respondent awarded the contract (i) for supply, providing, fixing or marble/granite including grinding and polishing, fixed and loose furniture work as per drawing and specification for lobby, tea lounge and public toilets and (ii) contract for hard landscaping development in front of House of Music (HOM) as per drawings and specifications. The value of work to be executed was Rs. 1,62,95,070/- and Rs. 38,00,752.68 respectively. According to the petitioner completion of the work was got delayed because of repeated failure on the part of the respondent. This fact is disputed by the respondents according to whom the delay was solely due to inadequate handling of the project on the part of the petitioner. According to the respondent, the first contract was to be completed within 45 days and the second contract was to be completed within 75 days time and the time was the essence of the contract. Memorandum of Understanding dated 9.12.2004 (page 65 of Part-Ill) was executed between the parties whereunder the petitioner undertook to complete the work by 31.12.2004. Accordingly, ad hoc payment of Rs. 20 lacs was made to the petitioner. However, the petitioner failed to complete the work within stipulated period. Petitioner again started asking for payment without fulfilling its commitment whereupon a final agreement dated 25.1.2005 (Page 88 of part III) was signed between the parties whereunder the petitioner made a firm commitment to complete the balance works positively by 28.2.2005. Again a sum of Rs. 35 lacs was released to the petitioner pending finalisation of the final bill. Petitioner admits execution of agreement dated 25.1.2005 but it is contended that the same was signed under pressure as the respondent was in a better dominating/bargaining position. Petitioner submitted their final bill dated 25.3.2005 giving measurements of the entire work done by them. It was received by the respondent in May, 2005. Since the work was not completed by the petitioner, respondent in the meantime issued a default notice dated 17.3.2005 asking the petitioner to complete the remaining work positively by 24.3.2005 but the petitioner failed to complete the same. Therefore, respondent rescinded the contract vide letter dated 25.3.2005 and also called upon the petitioner to come for joint measurement of the work on 27.3.2005. Petitioner did not respond. Respondent thereupon went ahead with the measurements and intimated the same to the petitioner vide their letter dated 11.4.2005. Then vide letter dated 12.4.2005 respondent again called upon the petitioner to fix a mutually convenient date for verification of the plaintiff's work but there was no response from the petitioner's side. Petitioner did not specifically controvert measurement given in the respondent's letter dated 11.4.2005 by sending a reply thereto but sent the final bill in May, 2005 which contained their measurements of the work done. Ultimately, the respondent awarded the contract to some other contractor to get the remaining work done. Thus, according to the respondents the entire measurement of the work done by the petitioner stand duly recorded and no further joint measurement is called for.

(3.) I have heard learned Counsel for the parties and perused the record.