Wishwa Mittar Bajaj and Sons(Constructins) Pvt Ltd v. Bptp Ltd

NAVIN CHAWLA, J DECEMBER 21, 2017/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP (COMM) NO. 427/2017 Reserved on:28th November, 2017 Date of decision: 21st December, 2017 WISHWA MITTAR BAJAJ & SONS (Constructions) Pvt. Ltd ...... Petitioner Through: Mr.Raghavedra Mohan Bajaj and Mr.Shreyas Mehrotra, Advs. Versus BPTP LTD ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 14.07.2017 passed by the Sole Arbitrator in Wishwa Mittar Bajaj & Sons (Constructions) Pvt. Ltd vs. BPTP Ltd., DAC/385/03-13 (hereinafter referred to as impugned Award). 2. The respondent vide its Letter of Intent dated 18.04.2007 had awarded the work of construction of Towers (G, H, J & K) for Group Housing Project at Sector-82, Faridabad to the petitioner. A work order dated 19.04.2007 was thereafter issued by the respondent in favour of the petitioner for the above- mentioned work. The stipulated cost of the project was Rs. 16,48,14,449/- Page 2 and was to be completed within a period of 21 months from the date of possession of the site. The petitioner claims that there were defaults on the part of the respondent not only in supply of drawings, decisions, steel, Ready Mix Concrete (RMC) etc., but also in release of payments under the Running Bills. The petitioner in this regard has made reference to various correspondence that were exchanged between the parties, however, I need not deal with them in detail as the issue involved is to determine the effect of the execution of the Settlement Agreement dated 10.04.2011 by the petitioner of such purported default of the respondent. The petitioner alleges that it was also forced to sign the "Indemnity-Cum-Undertaking" dated 11.05.2010 for release of the amount that was even otherwise due to it under the agreement. It is submitted that in spite of taking the undertaking, the amount of Rs. 15 lakhs was released only after about 20 days of the same. The petitioner further submits that it had raised a final bill of approx Rs. 90 lakhs on the respondent, which was not accepted by the respondent and the petitioner was forced to submit a revised bill dated 01.06.2010 of Rs. 64,28,369.14/- for the "Tower Area" and Rs. 9,88,628/- for the "Non-Tower Area" totaling to Rs. 74,16,997/-. It is submitted that in terms of the "Indemnity-Cum-Undertaking", this amount should have been released to the petitioner within a period of 20 days after the submission of the final bill, however, the respondent with malafide intention failed to pay the same forcing the petitioner to make representations dated 28.06.2010 and 05.07.2010 seeking release of the said amount. Instead of releasing the amount, the respondent forced the petitioner to submit a revised bill on 12.08.2010, reducing the amount of final bill to Rs. 40 lakhs. However, the respondent released only a payment of Rs. 4,58,556/- on 14.09.2010 to the Page 3 petitioner. The petitioner again requested for release of amount vide its letter dated 20.09.2010 and 22.09.2010. The respondent on 06.10.2010 finally released another sum of Rs. 13 lakhs in favour of the petitioner. On further protest, an amount of Rs. 23,852/- was released in favour of the petitioner on 04.11.2010 and an amount of Rs. 10 lakhs was released in favour of the petitioner on 24.11.2010. Another amount of Rs. 6 lakhs was released in favour of the petitioner on 27.01.2011 by the respondent. 3. It is submitted by the petitioner that on 11.04.2011 the Director of the petitioner company was called by the respondent to its Gurgaon office where he was presented with three documents i.e., Deed of Settlement, Affidavit and Indemnity Bond as full and final settlement and as a pre-condition for releasing further amount of Rs. 3,07,491/-. It is submitted that the petitioner signed the above documents so that the payment can be released