Delhi High Court Judgement on petition under Section 34 of the Arbitration and Conciliation Act, 1996 .
Title : M/S ORIENTAL STRUCTURAL ENGINEERS PVT.LTD.-M/S KMC-JOINT VENTURE v. NATIONAL HIGHWAYS AUTHORITY OF INDIA
Case No. 455/2018
Decided on : 09.11.2023.
CORAM : HON’BLE MR. JUSTICE PRATEEK JALAN
Introduction
Petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter, “the Act”], the petitioner assails an arbitral award dated 21.04.2018, by which a three-member Arbitral Tribunal has adjudicated disputes between the parties under a Contract Agreement dated 04.11.2004 [hereinafter, “the Contract”].
Fact of the Case
The Contract was awarded by the respondent-National Highways Authority of India [hereinafter, “NHAI”] to the petitioner for construction of part of a road known as the “Allahabad Bypass Project”. BCEOM-LASA JV [hereinafter, “the Engineer”] was nominated by NHAI as the Engineer under the Contract. According to the petitioner, work under the Contract was substantially completed by 15.10.2009 and notice was given to the Engineer for taking over the work on 15.11.2009. The Engineer issued Taking Over Certificate under Clause 48.1 of the General Conditions of Contract [hereinafter, “GCC”] on 11.12.2009. By a communication dated 15.11.2011, the Engineer enumerated a list of pending work to the petitioner prior to issuance of the Defects Liability Certificate.
Judgment and Case analysis
The Arbitral Tribunal has correctly ordered recovery of the amount of Rs. 46,28,483/- by the respondent, even in the absence of a counterclaim. Factually, the amount has been recovered by adjustment against the amount payable by NHAI to the petitioner under claim No. 2 for return of the bank guarantees and payment of costs of extension. In the statement of defence to the claim, in paragraph 10, the respondent clearly pleaded recovery of the aforesaid amount from the retention bank guarantees provided by the petitioner. As such, the recovery of the aforesaid amount by adjustment was contemplated in the pleadings itself, and the Arbitral Tribunal has not exceeded its jurisdiction in making such an award.
The claims of both parties having arisen out of the same transaction, Ms. Suri’s reliance upon Jitendra Kumar Khan11 is misplaced. In fact, the judgment permits a set-off in such circumstances.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written by Nimisha Sunny
