SHARMA CONSTRUCTION COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner-firm was allotted contract work for construction of "10 X above ground bunkers (50 Mt) each 01 X open WP AMN Shed and Allied infrastructure at 102 AP 10 INF DOU at Sunderbani" by respondent No. 4 vide acceptance letter No. 87360-A/74/E8 dtd. 30/10/2006.

(2.) It is stated by the petitioner-firm that despite certain breaches on the part of the respondent-department, it successfully executed the contract work on 23/5/2009, well within the stipulated contract period and respondent No. 5 issued the completion certificate dtd. 29/5/2009. The petitioner- firm further claims to have requested the respondent-department to take the joint measurements of the executed work and supply the abstract of measurable works, DO's, statement of recoveries, consolidated statement of credit and debits, statement of all paid RARs, to enable the petitioner- firm to prepare and submit the final bill but the aforesaid documents were not provided to the petitioner-firm for years together, therefore, the final bill could not be prepared. It is stated that while the final bill was still awaited, one of the walls (VIFT wall) constructed by the petitioner-firm in the aforesaid work collapsed in the year, 2010. A Court of inquiry was initiated by the department. The petitioner-firm participated in the Court of enquiry and submitted its reply to the department stating therein that the wall in question had fallen due to the defective design supplied by the department. It is also stated that all the stages of the work carried out by the petitioner-firm were duly checked and approved by the Engineer-in- Charge and G.E. at every stage of the work. While the Court of enquiry was being conducted by the department, the petitioner-firm kept on requesting the department to prepare the final bill and make the balance payment of the executed work. The petitioner-firm claims to have subsequently gained the knowledge that nothing adverse was found in the Court of inquiry against the petitioner-firm, therefore, the petitioner-firm again requested the department to finalize the final bill and make the payment of the work executed by the petitioner-firm, but there was no response from the department.

(3.) The petitioner-firm vide its letter dtd. 26/10/2018 requested the department to furnish the desired documents for preparation of the final bill. It is averred that the department, being not satisfied with the result of the court of enquiry, initiated yet another departmental enquiry against the petitioner-firm and issued a fresh show-cause notice dtd. 31/12/2018. The petitioner firm vide its letter dtd. 14/1/2019 submitted its reply to the aforesaid show-cause notice and denied any omission or lapse on its part in execution of the contract work. Again, in the departmental enquiry, nothing was found adverse against the petitioner-firm. It is stated that during the Court of enquiry as well as departmental enquiry, the petitioner-firm had been regularly requesting the department for release of the payment of final bill and the FDR, but in vain. After its exoneration, the petitioner-firm vide its letter dtd. 26/7/2019, again requested the department to release the payment of the executed contract work within 30 days of the receipt of the letter, failing which the petitioner-firm shall be left with no option but to invoke condition 70 of IAFW-2249 for reference of the claim to the Arbitrator. When the said letter evoked no response, the petitioner-firm vide its communication dtd. 19/2/2020, addressed to respondent No. 4, invoked Clause 70 of IAFW-2249 and requested for reference of the disputes/claims to the Sole Arbitrator for its adjudication. When respondent No. 4 failed to refer the claim of the petitioner-firm to the sole Arbitrator, the petitioner-firm, vide its letter dtd. 20/3/2020, requested respondent No. 2 for reference of the claims/disputes to the sole Arbitrator.