D D A Vs. NAV BHARAT CONST CO

JUDGEMENT

(1.) THIS appeal challenges the judgment of the learned Single Judge dated 21. 10. 1997 by which the objections preferred by the original respondent/dda i. e. , the appellant before us, were dismissed and the award dated 19. 6. 1993 was made a rule of the Court. Before us, the submission of the learned counsel for the appellant is in respect of Claim No. 8 which awarded damages to the respondent on account of infructuous expenditure and damages sustained by the contractor due to various breaches of delays committed by the appellant. The Arbitrator dealt with the aforesaid claim in the following terms :

(2.) THE objections in respect of claim No. 8 was rejected by the learned single Judge principally on the ground of the issue of undertaking having- been given by the contractor of not claiming amounts under this head and thus consequently not being open to the contractor to claim further damages. In our view, the above finding of the learned Single Judge ignores the claim no. 5 in para 10 where he has dealt with this issue in para 10 of the judgment and upheld the amount paid under clause 10 CC of the agreement. Having considered the entire discussion of the learned Single Judge in respect of claim No. 8 we are of the view that the learned Single Judge largely dealt with the case law only on the issue of factum of furnishing of undertaking which was relied upon by the DDA, and the learned Single Judge in our view does not appear to have noticed the effect of payment under Clause No. 10 cc already having been made which would include claims under claim No. 8, and particularly, when such plea was raised in respect of claim No. 8 before the learned Single Judge as objection No. Kg) as well as before the arbitrator himself.

(3.) WE are satisfied qua claim No. 8 that the judgment of the learned single Judge is contrary to the position of law one such judgment is reported as Anant Raj Agencies v. DDA, 2005 (5) Arb LR 590. The reasoning in another judgment of the Division Bench of this court in Delhi development Authority v. U. Kashyap, 1999 (1) Arb LR 88 : 1999 (48)DRJ 666 also in effect is also the same that once increase as per clause 10 (CC) is awarded then additional sums for increase in cost cannot be granted. Thus, in our view, the affirmation of the grant of additional sums in addition to the payment under Clause 10 CC for increase in cost by the single Judge was not justified.