Sumtech Engineers Private Limited vs Guru Gobind Singh Tricentenary Medical College Hospital And Research Institute & Anr

,,,,

Yogesh Khanna, J",,,,

CAV 58/2018,,,,

Counsel as above appears for the respondent/caveator.,,,,

The caveat is discharged.,,,,

IA No.1128/2018,,,,

Exemption allowed, subject to all just exceptions.",,,,

The application stands disposed of.,,,,

OMP (COMM) No.32/2018,,,,

Issue notice. The learned counsel accepts notice.,,,,

With the consent of the learned counsels for parties petition is taken up for hearing.,,,,

This is a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘the Act’) against the impugned",,,,

award dated 17.10.2017.,,,,

The brief facts of the case are as follows :,,,,

(a) on 05.12.2009 a letter of intent was issued by the respondent no.1 after getting approval from respondent no.2 for assigning the work of,,,,

construction of 3 BHK apartments for respondent No.1;,,,,

(b) on 10.12.2009 a formal contract was entered between the parties. It is in relation to the payment due with regard to the work done under the said,,,,

contract for which the claim had initially been filed before the arbitration tribunal and from which the present petition arises;,,,,

(c) on 15.04.2010 the 1st phase of the work assigned was completed by the petitioner and accordingly the same was mentioned in all the RA bills,,,,

starting from 8th RA bill onwords;,,,,

(d) on 30.01.2011 the respondents stopped entry of petitioner in the construction site and also barred him from taking away his material left at the site;,,,,

(e) on 18.02.2011 the petitioner submitted final bill with the net amount due against the work done to the tune of Rs.72,37,321/- The fact about",,,,

submission of the said bail has also been mentioned in the notice sent by the petitioner;,,,,

(f) on 14.03.2011 a legal notice has been sent by the petitioner to the respondent wherein the entire breakup of his claim was provided in para-5 of the,,,,

said notice, including the value of material left at the site. This is pertinent to mention here that this is an admitted document;",,,,

(g) on 16.04.2011 the respondent replied to the legal notice dated 14.03.2011 sent by the petitioner, however it was an evasive reply and no specific",,,,

response was submitted with regard to the claim made by the present petitioner and also with regard to the material left at the site;,,,,

(h) in 2012 Arbitration Petition No.488/2012 was filed by the petitioner before this Court seeking appointment of an arbitrator to resolve the dispute;,,,,

(i) on 30.04.2014 the High Court asked the petitioner as well as respondent to appear before the architect and try 'to resolve their issues amicably,",,,,

however the arbitration petition was kept pending to look into the outcome of the said effort;,,,,

(j) on 04.08.2014 the architect directs the respondents to make a payment of Rs.6,50,000/- to the petitioner. Later in the arbitration proceedings the",,,,

architect has explained this amount as half of the value of construction material found by him at the site, the ownership of which could not be proved",,,,

by the respondents and thus as the value of such material was Rs.13 lakhs so he directed for the payment of Rs.6.5 lakhs to the petitioner by the,,,,

respondent;,,,,

(k) on 28.08.2014 the respondent made an offer to the petitioner to accept Rs.6.5 lakhs however the offer was rejected by the petitioners as its claim,,,,

was of much higher amount and therefore the High Court disposed of arbitration petition after appointing an arbitrator in the case. The petitioner,,,,

submitted its claim of approximately Rs.1.43 Crore before the arbitration tribunal and in response to the same the respondents submitted a counter,,,,

claim of Rs.2 Crores against the petitioner;,,,,

(l) in July 2016 final arguments in the arbitration proceedings commenced and the same continued for 4 months i.e. till November 2016, thereafter the",,,,

judgment was reserved by the arbitration tribunal;,,,,

(m) on 17.10.2017 the arbitration tribunal pronounced its award and rejected both the claim as well as counterclaim submitted in the matter, hence this",,,,

petition.,,,,

The petitioner primarily had raised dispute viz qua two bills 12 th running account bill and 14th running account bill. It is the case of the petitioner he,,,,

gave a legal notice dated 14.3.2011 in which the petitioner made a reference of various amount due to it to the tune of Rs.2,29,44,586.19 and out of",,,,

which payments against 11th RA were received and the remaining amount approximately of Rs.72 lakh was pending for which he prepared 12th RA,,,,

bill. The payments of such 11th RA bills were allegedly cleared by 30th September, 2010. In October, 2010 12th RA bill was allegedly sent by the",,,,

petitioner herein to the respondent. The learned counsel for the petitioner however refers to its statement of claim filed before the tribunal wherein,,,,

following was stated i.e. as agreed bill were prepared as per partly work done and as per bills payments were released by the respondents till 12th RA,,,,

bill of the claimant, which relevance as per the petitioner was wrongly relied upon by the arbitral tribunal.",,,,

The petitioner filed claim No.1 for outstanding dues of Rs.58,30,937/- for the work done. The petitioner has given this table for bills raised,",,,,

payments made and receivables and says payments qua bills No.12th to 14th were never received.,,,,

R/A BILLS,"GENERATION

DATE","N E T PAYABLE

AMOUNT","TOTAL AMOUNT

(IN RS.

[RECEIVED]","DIFFERENCE

)

1ST,4-01-2010,"9,83,783","897,313","86,470

2ND,19-01-2010,"14,47,713","12,10,230","2,37,483

3RD,03-02-2010,"16,39,475","11,15,449",524026

4TH,28-02-2010,"25,23,648","14,29,923",1093725

5TH,28-02-2010,"22,98,156","20,31, 693",266463

6TH,14-03-2010,"25,75,221","25,75,221",216878

7TH,29-03-2010,"67,73,539","24,59,915",4313624

8TH,17-05-2010,"53,60,968","13,15,383",4045585

9TH,19-07-2010,"32,87,337","11,08,525",2178812

10TH,28-08-2010,"36,19,133","490,000",3129133

11TH,30-09-2010,"31,71,661","113,962",3057699

12TH,16-10-2010,"14,47,999",,1447999

13TH,23-11-2010,"28,40,356",,2840356

14TH,25-02-2011,"72,37,621",,7237621

therefore be taken as a ""running account"" bill. In response to the legal notice, the respondent replied, vide reply dated 16-4-2011 (page",,,,

74, Ann. C/5 of claimant's documents), denying the receipt of any 14th RA Bills referred to in the claimant's notice. The respondent also",,,,

stated that the claimant was not permitted to commence the work of Phase 2 since its work in Phase 1 was far from satisfactory. It also,,,,

stated that even the Phase 1 work was left incomplete by the claimant and therefore the respondent had to complete it by engaging a third,,,,

party. At no point of time did the claimant produce proof to show that it had sent any RA Bill after the submission of the 12th RA Bill. The,,,,

burden was on the claimant. to prove it, which it did not discharge.",,,,

I will now refer to the oral evidence on this aspect, viz., whether the claimant had sent any RA Bill to the respondent after the 12th RA bill.",,,,

Mr.Parashar Gautam, CW-1, has admitted to the last question asked on 14-10-2015 that there is no acknowledgment of the final bill (which",,,,

is the 14th RA bill) and also stated that he has stated so in the legal notice dated 14-3-2011. In answer to the previous question, he had",,,,

accepted the suggestion that the respondent used to give acknowledgement after receiving the RA Bills. He has confirmed his answers,,,,

during the cross examination on 2-11-2015 - see the first two questions and answers thereto, in which he has first answered that the",,,,

respondent refused to take the final bill, but then answered to the next question that the bill was not even sent to the respondent by post or",,,,

e-mail (which a person would normally do in case of refusal). To a specific question whether he can show the 13th RA Bill from the records,",,,,

he answered in the negative but added that he had submitted it on 23-11-2010 and has an acknowledgement for it. But the,,,,

acknowledgement was not produced before the tribunal. The claim that the claimant sent its 13th and 14th RA Bills in November, 2010 and",,,,

January /February, 2011 thus does not stand proved by the testimony of CW-1.",,,,

RW-1, Mr. Rajesh Gupta has testified during the cross-examination that the RA Bills submitted by the claimant are placed at pages 38 to 41",,,,

and 43 to 46 of the documents accompanying the counter-claim. These are the same documents which have been referred to by me earlier,",,,,

where the 12th RA Bill submitted on 16-10-2010 has referred to the net payable amount at Rs.14,47,998.94 Ps. No question was put to him",,,,

by the claimant during the cross-examination about the other four 14th RA Bills said to have been sent by the claimant, copies of which are",,,,

placed at pages 53, 103, 119 & 124 of the documents filed by the claimant.â€​",,,,

The above shows the 14th RA Bill did not have acknowledgement of respondent; even it did not bear signature of claimant; no covering letter,,,,

could be produced; even the work of phase 1 was got completed by some other contractor what to say of Phase 2. Even in cross-examination of,,,,

CW1it has come out there was no acknowledgement of final bill (14th Bill). He could neither show 13th RA Bill on record nor acknowledgement,",,,,

further RW1 was never asked any question on 14th RA Bill. The arbitral tribunal rightly reflected claim for 12th and 14th RA Bill.,,,,

There is no reason for me to take a different view from the learned arbitrator. The arbitrator has dealt with the contentions of the petitioner,,,,

elaborately in its award and had even discussed oral and documentary evidence. No flaw can be seen in its finding. The role of the Court being limited,,,,

in these cases, there is no reason why the petition should not be dismissed.",,,,

Hence the petition is dismissed.,,,,

No order as to costs.,,,,