UNION OF INDIA Vs. S K CHOPRA

JUDGEMENT

(1.) THE suit was registered on the filing of arbitration award dated 24th october, 1994 in this court by the arbitrator. Notice of the filing of the award was issued to both the parties. Objections under Sections 30 and 33 of the arbitration Act 1940 in the form of IA No. 1118/1996 by the petitioner Union of india and IA No. 1119/1996 by the respondent Shri S. K. Chopra have been preferred with respect to the parts of the award against the respective parties and claimed to be severable from the other part of the award. Though, the objections have been pending for long but as per the prevalent practice, the usual issues had remained to be framed. The same were framed on 7th July, 2009. The counsels for the parties stated that the arbitral record received in this court only would be relied upon by them in support of their respective objections and no affidavits by way of evidence are required to be filed. The counsels for the parties have been heard.

(2.) THE agreement between the parties with respect whereto disputes arose, was of award of contract by the petitioner Union of India to the respondent of construction of Flyover and Retaining Walls near the Flated Factories at jhandewalan, New Delhi. The date of start of the work was 6th December, 1985 and the stipulated date of completion was 5th December, 1986. However, the work continued to be executed beyond the stipulated date of completion also and the time for completion was repeatedly extended by the petitioner Union of India. The said work was not completed by the respondent and disputes and differences arose between the parties. The contract was rescinded on 15th November, 1989. The award records that only the claims of the petitioner Union of India were referred to the arbitrator vide letter dated 9th December, 1992. The award also records that the respondent made counter clams before the arbitrator on which pleadings were completed though the said counter claims had not been referred by the appointing authority to the arbitrator. The award nevertheless deals with the claims and the counter claims together under one head only.

(3.) THE arbitrator has held that initially the petitioner Union of India was in breach in its failure to handover a part of the site to the respondent and later the respondent had inordinately prolonged the work; the arbitrator in view of the fact that the contract had been rescinded by the petitioner Union of India belatedly without making the time for performance as essence, holds that legally no risk and cost action in terms of the agreement subsists in favour of the petitioner UOI against the respondent and nothing could be awarded to the petitioner UOI against the respondent under the claim No. 2 in this regard. For the same reason the claim no. 1 of the petitioner UOI for levy of compensation for delay in execution of work was also declined. On the same reasoning the counter claim No. 5 of the respondent for losses due to idle establishment etc. due to prolongation of the contract was also declined. The award also holds that the petitioner Union of india had already paid the escalation under the provisions of clause 10 (CC) of the agreement for the work done during the stipulated period of the contract and finding the delays attributable to both parties, no further payment on this account has been allowed to the respondent. The award also negatives the claim of the respondent for wrongful deduction of the rebate for timely payment of the bills. The award also negatives the claim of the respondent for centering/shuttering.