Full Text
FAO(OS) (COMM) 95/2018
Date of Decision: 14th August, 2018 M/S SUBHASH INFRAENGINEERS PVT LTD ..... Appellant
Through Mr. Anil Mittal and Ms. Komal Aggarwal, Advocates.
Through Mr. Jagjit Singh and Mr. Preet Singh, Advocates.
HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J. (ORAL)
This intra-Court appeal under Section 13 of the Commercial
Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 and Section 37 of the Arbitration and
Conciliation Act, 1996 (A & C Act, for short) impugns order dated
23rd February, 2018 passed in OMP (COMM) No. 38/2018 rejecting objections filed by the appellant under Section 34 of the A & C Act.
JUDGMENT
2. The appellant was awarded work of earth work in filling, embankment and cutting, provision of the blanketing material, 2018:DHC:5116-DB construction of bridges and other works between K.M 49.00 to K.M 74.[4] on the Rewari-Jhajjar-Rohtak section.
3. The work was to be completed within 18 months from the date of acceptance letter, i.e. on or before 3rd January, 2009. The work, it is accepted, was completed on 28th February, 2011.
4. The dispute raised by the appellant before the Arbitrator was regarding benefit of price variation clause. The contention was that the respondent having extended time for execution of the work vide letters dated 4th August, 2009, 7th August, 2009, 10th March, 2010 and 20th June, 2010 without penalty, the appellant was entitled to benefit of price variation clause. The appellant was granted first extension of time with benefit of price variation clause vide letter dated 12th February, 2009. Subsequent extensions vide letter dated 4th August, 2009, 7th August, 2009, 10th March, 2010 and 20th June, 2010 were without benefit of price variation clause.
5. The aforesaid aspect and facts as to the reason and cause for delay was examined by the learned Arbitrator-Mr. Justice G.S. Singhvi (Retd.) in depth and detail vide paragraphs 43 to 52 in the Award. The paragraphs examine the contention of the appellant that L section drawings were furnished belatedly, and whether this delay would justify and explain repeated extensions and prolongation of the work. The contention was rejected by the learned Arbitrator after referring to the letters exchanged between the parties as well as ocular evidence. It has been held that delay in execution of work was not on the said account and there were several other reasons and causes which were attributable to the appellant. The findings on the said aspect are cogent and well-reasoned. Learned single Judge in the impugned order has also referred to and quoted paragraph 49 from the award, which reads:-
6. The second objection raised by the appellant was in respect of extra payment for bringing material from Tiba Basai, Rajasthan to Jhajjar, Haryana in view of the stated ban imposed by the Punjab and Haryana High Court and the circular issued by the Director Industries and Commerce, Mines and Geology, Haryana. The said contention has also been rejected after referring to the evidence and material on record, including the factum that the appellant herein had not been able to show and prove that the bills of M/s. Ashok Kumar and M/s. Prem Engineers relied by the appellant were relating to the contract in question. Factual findings on the said aspect are to be found in paragraphs 53 to 58 of the Award. The said findings again are cogent and well-reasoned. They do not require interference when we apply Wednesbury Principles.
7. No other contention is raised.
8. The appeal has no merit and is accordingly dismissed, without any order as to costs.
SANJIV KHANNA, J. CHANDER SHEKHAR, J. AUGUST 14, 2018 NA/VKR