Silver Resorts Hotel India Pvt Ltd v. Wimberly Allison Tong & Goo (UK) Ltd

2. Thedisputerelatestonon-paymentofarchitecturefee,interms ofthe Design SeiviceAgreement"dated08.12.201!.

3. A numberofcontentions wereraised beforethe SingleJudge but before us the appellant has raised a singular contention. ThJ 2017:DHC:9044-DB \ challenge is to the part oi the award which directs payment ofthe thiid and the last tranche of£50,000 each under the Fee Schedule set out in Appendix 'B' of the 'Design Service Agreement' dated 8.12.2011. ' d.. d

4. The appellant asseitithat the respondent had failed to perform theirobligationsand had notsubmitted completedrawingsrelatingto the third trancheof£50,000towardsprofessional servicefeepayable on completion of75% design development.Our attention was drawn tothee-mail dated 21.04.201.7sentby Vipin Thakuroftheappellant to Massimo Malliaofthe respondentin which specificshortcomings mdesignanddrawingswerepointed out.Ontheprincipleofquantum meruit, tfte respondent was not entitled to the fourth tranche of £50,000 as the respondent had not completed 100% design development. Therespondentinthestatementofclaim had adverted having completed 90% ofthe deliverable work by March,2012for which drawings were issued to the appellant on 19.03.2012. It is submitted that this i-^ n - caoc 0,a perverse award which aspect has beenoverlooked bythelearnedSingleJudge. -P-dent has contested the submissions. Our attpnt'V,r. - -j atiention /./as drawn to the Iponi j 1608 7010m, notice dated • o-Zul^. lOi pay.men'^ of£i 40 n^io 'yn ■ i - ouistanaing invoice, for due to bad market HV whtch had adversely affected them,they had m^h flow^"17' causing delay.The appellanthad.equested the[1] ^ n ^quested the lespondent to release IP further drawings,for delay in implementation ofthe project was not beneficialto either party.Thusimplying thatthe appellant wasaware thatthe designs wereready.Intherejoinderfiled beforethe arbitrator, the respondent had affirmed and asserted the appellant were fully aware since inception that development phase drawings would be issued after release ofoutstanding instalment. The respondent had duly performed their part ofthe contract. They had prepared all or 100% design developmentdrawings.

6. At the outset, we would note that scope for interference is rather limited and confined to the statutory parameters stated in Section34ofthe Act. Thelearned Single Judge hasrightly referred to the ambitand scopeofthesaid section by making reference to Oil and Natural Gas Corporation Limited Versus Western Geco InternationalLimited,(2014)9 SCC 263 and Associate Builders VersusDelhiDevelopmentAuthority,(2015)3SCC49whichplaces reliance on PR Shah,Shares andStock BrokersPrivate Limited versusB.H.H.SecuritiesPrivateLimitedandOthers,(2012)1 SCC 594,tointerpret"publicpolicy"etc.

7. The arbitration award dated 03.07.2015 is exhaustive and etailed onthequestionofamountsdueand payableand whetherthe.rd »d thefourth tranchesof£50.000each,theclaim of£35000 for additional work beyond the scone of p agreement and £5,059.70 towardsexpenses,were payable. The e-mail of Vipin Thakur dated 21.042019 i • • aboutAegridsdisplacedinrespectofA 1.00hasbeendulyrtl!! r said award reads as under; '5.[7] On 3April 2012, Wimberly wrote to Silver Resorts with reference to an e-mail sent apparently afew days before (3(f^' March)andasking thatSilver Resorts to "letthem know when tne outstanding itselfwill be transferredto our bank account". On tnis day, the 3 invoices being LO 7586, LO 7637andLO 7640 totalling 105,059.70pounds were outstandingfor more than 30days. SJ Theregteron! 7April2012,Mr.Stephen MichaelAlbertof Wjmberely wrote to Mr. Vipin Thakur ofSilver Resorts as Hi Vipin Ihavetriedtocauyou butbelieveyouarein Chandigarh at me m.oment. OurMDIS veryconcernedastherearenowanumberof paymentsoverdue dating back to JanuaryandFebruary fheseareveryoverdue(over60days)andFm beingtold we wih not be allowed to issue our updated drawings iZwof 'nighteven needto bv ret 7 y°" iheseandletmeknow jyjeturn when wecan expectpayment. Thefollowingareoutstanding ■ L07586for50,000.OOpounds LO 7637for50,000.00rounds ^07640for[5],059.70pounds Iwilltryto callyouagain." Mr. Albert time copied Mr Sushh and this i^imhfelyhad Tt[7] nofurtherdrawingsolseheflfffifffffZ soughtpaymentqf'outstandinginvoices. Itwroteasfollows Hi Massimw wrote to you on the if' March and clearlystatedthatdue to the outstandinginvoices, which are still unpaid, our Managing Director is not allowing us to issue anyfurther drawings or schedules. We have completedthe area reconciliation chartandareready to sendthisandhave haditreadypriorto 7^''April ^ inuoi iiTtpiore you to settle these invoices which are over60days overdue. Until we receivepaymentour hands are tied and not only can we issue nofurther r drawings but we will heforced to stop work. Our MD ■las told us that we have to stop end of this week if payment is notmade in thenext couple ofdays. Regarding the level or coordination our drawings are coordinated with the information we have received, largely the engineering information is wellprogressed ana coordinatedhut theInterior Design andLandscape are still m concept andhugely behind. We have made every ejfort w incorporate the many changes that have arisen out oftneir input andMGMs to date. CanIplease ask you to settle the invoices as a.natter ofutmost urgency. \ and we the'se 'f"'"'P' fo'ilowf Albert as Inote that WATGhasreached80%stage At thissta^P r \ Reconciliation Chart'which illustrates how you have satisfied the operator's^ requirements and how you have stayed within the permissible FSl and have achieved the require parking numbers. Any DD package without these details is totally irrelevant ana oj little use to us. Please ensure that these things are taken care ofbefore vi^e movefurther. Kindlysend thearea conciliation asap. Pb:in thelastdesign worhhop inLondon in March WATGhad promised to send the complete area reconciliation chart by April(on as is where is basis) hut WATG hasfailed to deliver that." 5J[1] On 20 April 2012 Mr. Albert of Wmberely then wrote to Mr ihakurformallyiriformingthattheyhadstoppedworkasfollows: ^ We have^ notreceivedthe outstandingpayments thatgo bacii over 60 days or expensesfor coordination meetings in P'^^ject that are also considerably overdue. Our MJ IS notpreparea to let this continue and'with regretImust informyouthatfromtodaywehavetostopworkontheproject. Ive been^told that unless payment comes in the next coupleofdaystne matter mhIIbe handedoverto ourcorporate i^ollections group."

5.12 Ihe.eafter on 2l Aprd 2Q12 Mr. Thakur wrote to Wimberelv complainingaboutcertaingridsbeingdisplacedinrespectofA 1.00. 5.13Another mail was written nn ?1 Anvil imi i a^, heinformedMr.Albert fifffT payments" In this iefer h' X ■ C' o "houtthe frLthedfgfefjfeifZMrTL complaintsstatinginteraliaasfolloLs: Overa//, in terms ofnumber ofsheets 25 dwgs have been ^otalexpected75drawings. Ih I /mow some coordination is required in interiors and landscaping but even the level ofdetailing done by the ID consultants,^facade consultants, landscape consultants and MEPconsultants till date(on as is where is basis)has notbeen fully mcoiporated in your drawings. Even the structural coordination which is fairly advanced has not been fully incorporated. In this context,i would require thatyou should not relate the work withpaymentsandshouldcontinue to workand make up fortne deficiencies Listedabove. Weareon verytighttimelines andstoppageofworkfromyourside wouldadverselyaffectthe construction acdvity down tiie line I have already reqvjrsted Mr. Suri to release payments as appropriate ana eornmenswate with the deliverables on date Tddedr-'

9. Thereafter, tlie award refers to the cross-examination of Stephan Albertand makesreference to the letter written by Stephen Albertto Sushil Suri ofthe appellantand the response given bythe latteronthesameday viae-mail. Therelevantparaofthesaidemail by Sushil Suri reads as under tnanks Siepnen, you had always been a goodsupport Will

10 The award thereafter considers and refers to further correspondence which had taken place between thepartiesincluding theletterdated24.05.2012. Theletter wasfollowed bylegalnotices -ent by the Solicitors of the respondent dated 11.06.2012 and 16.08.2012. In lesponse to the last legal notice, the appellant had stated as under "reare makingailthe efforts tosettle theoutstandinginvoices at the earliest however due to bad marketconditions, the cash flows ofthe Company have been adversely affected which has resulted in the delays. We have no intention to default in the payments but it is only a delay. We seek 60days time(on or before Nov 3, 2012) to clear the outstanding bills. We also seekasupportfrom WATGto releasethedrawings,asdelayin implementation ofthe project will not be beneficial to either party. Itwillonhyfurtherdelaythecash inflows. We hopeyou vvillaccede to our requestand weshall make allthe efforts to ^ settle the bills atthe earliest. "

11. It IS apparent to ]js that there is comprehensive and due consideration and appreciation of the relevant evidence by the arbitrator before heamved atthefinding infavouroftherespondent. By no stretch, can we consider the reasoning and conclusion as perverse or one based upon no evidence or even mis-reading of evidence. The view expressed and the outcome is lucid and well considered.Thefinalconclusioni.smorethanplausible,tteemhely acceptable. Rdiance placed by the appellant on paragraph 7 of the statement of claims filed by the respondent is misconceived atagiaph 7 oftne statement ofclaim has to be read along with paragraph 5 which refersto and,uoms Appendix B oftheDesign ServiceAgreement. AppendixBwasthephase-wisefeeschedulefor paymentbytheappellanttotherespondentandreadsasunder: "FeeSchedide" a /T-J[7] tie paymentschedule calls for mnmth] '77•,/0' monmly Oillmgsand monthly r paymentof feesforservicesprovided by WATG in approximate relationship to thephases oftheproject. Theschedule depends on the clientproviding timely approval and written instruction toproceedto eachphase assetoutin thescopeofwork. Month Timingfor Guidance Purposes, ArchitectureFee(Pounds) Mobilisation £50,000 Month 1 25%)Design Development-£50,000 Month 2 50%Design Development-£50,000 Month 3 75%Design Development-£50,000 Month 4 100%)Design Development-£50,000 Total £250,000 In para 7,the respondenthad pleaded that: In conformity with the said Agreement, the Claimant had completed90%ofthe deliverable workbyMarch 2012andthe drawingsfor the same were issued to the Respondent on 19'^ March, 2012. However the Respondentfailed to keep its promise in terms ofthe saidAgreementandstarted defaulting in makingpayments to the Claimant." The aforesaid paragiaph in the claim petition would indicatethatthe respondent had claimed that they had completed 90% of the deliverablework byMarch,2012andthedrawingsforthesamewere.ssuedtotheappellanton 19.03.2012.Theappellanthoweverhadnot kepttheirpromiseto makepayment.Theappellantmayhavedenied t at the respondent had completed 90% ofthe deliverable work by March 2012,butthisisa disputed question offactwhich hadto be considered bythearbitrator.Theassertion ofparagraph 7would not tn / / / ■ / show and establish that the drawings were never completed and ready.The respondentin the rejoinder had affirmed and reiterated that they had completed the entire or 100% design development assigned to them as per the contract and were ready with the design development drawings. Tiiese drawings were not released as the appellant had failed to make paymentfor the third tranche of£50,000 raised vide invoice dated 27.01.2012. Paragraph 7 refers to deliverable v/ork by a particular date and notthatthe 100% drawings were notcomplete and remained pending.

13. Two bills were thereafter raised on 27.02.2012 and on 03.05.2012 for £5059.70 and £35,000 for expenses and additional work,respectively.Theseinvoices were notdisputed or denied atany time.

14. Having considered the contentions and argumentsraised,we do not iTinlc that the impugned order and judgment dated 18.07.2016 upholding the arbitration award dated 03.07.2015 and rejecting the objections requires interference. We do not find any merit in the appeal,which is dismissed with no order asto costs. %■ (_ SANJIV KHANNA,J MAY 17, 2017 REK / kJALLI,J