Associate PID - 18 - 07 - 22

DRAFT
SPEED POST
Tele: Military Engineer Services
FAX- HQ CE (AF) Nagpur Zone
Nagpur-440001
83322/ARB/TKD/ /E8 Jul 2022
Sh Narendra Saigal
CE(QS&C) (Retd.)
Sole Arbitrator
Tower-D, Flat No. 111
Caldadium, Sector -109
Gurugram-122001
ARBITRATION ON DISPUTES ARISING OUT OF AND IN RESPECT OF CA NO : CE (AF) NGP/GUR-46/2015-16 :

PROVN OF MARRIED ACCN FOR DSC PERSONNEL AT AF STN GURGAON
BETWEEN
M/S Associated construction Co - CLAIMANTS

51/23, Rajinder Nagar,
New Delhi-110060
AND
UNION OF INDIA - RESPONDENT

REPRESENTED BY
CHIEF ENGINEER AIRFORCE , NAGPUR ZONE
NAGPUR AND OTHERS
Dear Sir,
1. Reference yours Order Sheet No.NS/ARB/GUR/08 dt 02 May 2022 and Claimant’s letter No. ACC/CE(AF)
NGPGUR2015-16/Arb-6 dated 24 May 2022.
2. The respondents hereunder submit their pleading in defence on the statement of claim
submitted by the claimants: -
(A) The respondent denies and disputes the contents thereof save and except what are
matters of record.
(B) SALIENT FEATURE / PARTICULAR OF CA :-
i. The details mentioned are mismatching with record date not completely correct. The correct salient
feature and particular of CA alongwith milestone date are as under:_
(a) CA No. : CE (AF)/NGP/GUR-46/2015-16

(b) Name of work : PROVN OF MARRIED ACCN FOR DSC
PERSONAL AT GURGAON.
(c ) Date of Receipt of tender: 17 Mar 2016
(d) Date of acceptance : 30 Mar 2016
(e) Name of contractor : M/S Associated Construction Co.
(f) CA Amount : Rs. 8, 63, 98,200.00
(g) Period of contract : Phase I: 02 Months (Preparatory Work)
Phase-II: (Sample qtr of OR’s Block) before 04

months of Scheduled date of completion
Phase-III: 18 Months (Balance work except in

Phase I & II)
Phase I Phase II Phase III

(h) Date of commencement :
as per W.O. No. 1 09 May 2016 09 May 2016 09 May 2016
(j) Original date of completion 08 Jul 2016 08 Jul 2017 08 Nov 2017
(k) Extended date of completion
(k-i) Ist extension : - 31 Mar 2017 31 Dec 2017
(k-ii) IInd extension : - 15 Oct 2017 30 Apr 2018
(k-iii) IIIrd extension : - 31 Oct 2017 31 Aug 2018
(k-iv) IVth extension : - 31 Dec 2017 31 Oct 2018
(l) Actual date of completion: 08 Jul 2016 27 Dec 2017 31 Oct 2018
The scope of work include construction of: -
Sch ‘A’ Part Description of Work CA Amount (in Pre-price rate by Remarks
Rs) MES
Sch ‘A’ Part –I(A) Building Works 6,69,60,000.00 5,40,00,000.00
Sch ‘A’ Part-I(B) Garbage bin 1,62,000.00 1,22,304.37
Sch ‘A’ Part-II Excavation and earth work 3,90,000.00 4,97,926.25
Sch ‘A’ Part-III Internal Water supply 6,30,000.00 5,50,403.50
Sch ‘A’ Part-IV Internal Electrification 10,80,000.00 11,83,877.00
Sch ‘A’ Part-V Road / Path 22,50,000.00 14,91,488.10
Sch ‘A’ Part-VI External Water Supply 8,70,000.00 8,35,926.60
Sch ‘A’ Part-VII External Electric Supply 9,60,000.00 8,70,560.60
Sch ‘A’ Part-VIII Area Drainage Work 9,30,000.00 7,31,323.10
Sch ‘A’ Part-IX Sewage Disposal Work 2,70,000.00 2,18,556.88
Sch ‘A’ Part-X Rain Water Harvesting 90,000.00 69,305.80
Sch ‘A’ Part-XI Misc B/R and E/M Work 1,18,06,200.00
Total
(C) BRIEF HISTORY OF CASE

i. It is fact that obligation under the contract shall be fulfilled by both the parties for smooth functioning
of contract. As per Para 1.1 of Sch ‘A’ Notes, the period of completion are as under:-
1. Period of completion
1.1 The entire work covered under this contract shall be completed within a period of
(18(Eighteen months from the date of handing over of sites. The site for all the work shall be
handed over simultaneously.
1.2 Entire work under this contract is grouped in three phases i.e. Phase – I, Phase II & Phase –
III which shall be completed as mentioned below from the date of commencement / handing
over of site and all the works included under all the phases shall be completed within a
period of 18 (eighteen) MONTHS from the date of commencement of work: -
(a) Phase I - 02 months (Preparatory work includes preparation of
CPM chart, procurement of material, T & P, establishment of site lab
etc.)
(b) Phase II – One Quarter on 4 th floor of ORs block shall be
designated as sample quarter. All works (except structural works) in
sample quarter shall be executed in such a way that any work
including internal services in any other quarter. Entire work of
sample quarter shall be completed within 04 months before the
scheduled date of completion for entire work. Work order shall be
amendment accordingly.
(c) Phase III - 18 months (All remaining works covered in subject
contract except the works covered in Phase I & Phase II).
ii. It is observed that the Phase-I of the work includes the preparatory work only. The completion of
Phase-I was issued by the respondent vide letter No. 8315/46/87/E8 dated 12 Jul 2016 with its due
date i.e. 08 Jul 2016.
iii. The Ld Sole Arbitrator attention is invited on the exhibit C-7 of claimant, where the claimant had
stated that the layout of building and its connected B&R/E&M services has been marked on ground.
This exhibits that the site was handed over to the Claimant on time. Further the exhibit C-11 indicates
that the site layout has been finalized by executives within 07 days of intimation by the claimant
contractor. Thus therefore, there was no delay in handing over as well as finalization of site. Further,
the sample as submitted by the claimant was also got approved within the reasonable time period.
(D) EXTENSION OF TIME

i. The statement made by the claimant are devoid of any merit and without any justifications. The brief
details of Extension of time granted to claimant contractor are as under:-
a. Extension of time was granted up to 15 Oct 2017 (for Ph-II) for the reasons as under
i. Delay due to demonetization of currency and restriction on withdrawal of money,
daily wages labour gone to their native place. - 76 Days
ii. Imposition of banning by Hon’ble Supreme Court on mining and queries, Strict
restriction imposed on overloading of truck in NCR area, Non entry of heavy vehicle
in NCR area before 11:00 PM - 60 days
iii. Delay due to enforcement of new GST law with effect from 01 Jul 2017 – 10 Days
Total Extension of Time granted - 146 Days (Beyond the control of Both the
Parties)
b. Extension of time was granted upto and incl 31 Dec 2017 (Ph-II) and 31 Dec 2017 (Ph-III) for the
reasons as under:-
i. Due to non-receipt of decision of water proofing treatment - 77 Days
Total Extension of Time Granted - 77 Days

- (Delay due to Confusion created by the
Claimant on type of Water Proofing
treatment to be used (Explained here-
in-below)
- Over laps with the reason “Due to non-
receipt of decision towards pre-
laminated particle board”
c. Extension of time was granted upto and incl 30 Apr 2018 (Ph-III) for the reasons as under:
i. Due to additional time required for completion of Phase-III after completion of
Phase-II - 04 Months
Total Time of extension – 04 Months (Due to additional work required to complete

the work)
d. Extension of time was granted upto and incl 30 Aug 2018 (Ph-III) for the reasons as under:
i. Due to additional work on account of undulated ground and increase in plinth height
of buildings - 50 days
ii. Due to Non-receipt of decision of “Provn of Dr. Fixit Sunken Floor Treatment in
addition to existing provn “ - 105 Days (Overlaps with the reason “due
to non-availability of specified make and
processing of approval case for additional
make” other than the reason as mentioned
at Para d(ii) here-as-under.
iii. Due to non-availability of specified make in market and processing of approval case
for additional make (Solar water heater) - 60 days
iv. Delay due to payment of RAR due to non-availability of fund - 45 days
v. Demonetization of currency notes - 35 Days
Total time extension granted - 295 Days

- Reason (i) - Due to additional work required to
complete the work. The Claimant was also
getting additional payment as per Condition 07
of IAFW 2249.)
- By observing the above reasons, reason (ii) &
(iii) are fundamentally part of 11(A)(ii) because
the reason of delay on part of nominated
suppliers (Make of product listed in PS form
part of Contract Agreement).
- However, Reason(iv) finds a part in the
absolute discretion of Accepting Officer under
11(A)(iv) for situation is beyond control of
Contractor.
- Reason (v) is beyond the control of both the
parties
e. Extension of time was granted upto and incl 30 Oct 2018 for the reasons as under: -
i. Abnormal rains in area and outbreak of dengue and chikengunia - 29 Days
ii. Extra time required for execution of pump house - 32 days
Total extension of time granted - 61 Days

- Reason (i)-Due to additional work required to
complete the work. The Claimant was also
getting additional payment as per Condition 07
of IAFW 2249.)
- Reason (ii) – Beyond control of both the
parties.
iii. From the above explanation, the respondent submits that most of delay occurred due to
conditions/situations beyond the control of both the parties. In this connection, it is further stated that
the above extension was granted under condition 11(A) of IAFW-2249. The contractor had accepted
the above extension DO without any comments or protest under condition 11(C). Since, the condition
11(A) (iv) clearly states that “by reason of any other cause (except force majeure) which is absolute
discretion of the Accepting officer is beyond the Contractor’s control”.
iv. Also, for the reason for additional work, the additional amount has also been paid to Claimant through
appropriate DO.
v. In addition of above, Condition 11(B) is reproduced as under:
“If the Works be delayed: -
(a) by reason of non-availability of Government stores shown in Schedule „B‟, or
(b) by reason of non-availability or breakdown of Govt. Tools and Plant listed in
Schedule “C”; then, in any such event, notwithstanding the provisions hereinbefore
contained, the Accepting Officer may in his discretion grant such extension of time as
may appear reasonable to him and the same shall be communicated to the Contractor
by the Accepting Officer, in writing. The decision so communicated shall be final and
binding and the Contractor shall be bound to complete the work within such extended
time.”
Therefore, the time extension can be granted on fault of Government under above
mentioned condition.
vi. Further, Condition 11(D) is also re-produced here-as-under:
“No claim in respect of compensation or other wise for idle labour and/or idle machinery etc.
and/or business loss or any such loss, howsoever arising, as a result of extensions granted
under Conditions (A) and (B) above shall be admissible. The decision on reason and quantum of
extension shall be final and binding.”
Since, the Claimant contractor had accepted the Extension DO under condition 11(A) of IAFW-2249.
Therefore, as per condition 11(D) no claim of the Claimant shall be made admissible.
vii. In view of above and by using rule of “ ejusdem generis”, it is submitted that the Condition 11(D) shall
be applicable in case the extension is granted on Government default and Contractor had accepted
without any protest during execution. In the instant case, the Claimant contractor had been made
aware of the fact that if he accepts the extension DO for the reasons given in Condition 11(A) and
11(B) of IAFW-2249, he shall have no claim on the compensation whatsoever.
viii. Since, as per explanation rendered here-in above Para, the reasons with its logical explanation lies
under Condition 11(A) and Claimant had accepted all the Extension DO without protest, therefore, no
compensation as per condition 11(D) shall be made admissible. Therefore, the respondent most
respectfully submits to Ld Sole Arbitrator that the claim of prolongation of contract by the Cliamant
shall be rejected on account that contract period was enhanced based on mutual agreed terms by
both the parties and both parties had accepted liability, including financial liability by signing
Extension DO.
(E) BRIEF FACTS AND CIRCUMSTANCES
i. The point raised by the claimant contractor is false, baseless and without any basis. The extension
on certain additional work was also granted to claimant as evident from the brief details here-in-
above.
ii. The condition 65 of IAFW 2249 clearly states that the final bills should be submitted by the contractor
on IAFW-2262 in duplicate within three months of physical completion of the work to the satisfaction
of Engineer-in-charge. For preparation of Final bill, the GE is required to submits the copy of abstract
to the contractor. In this connection, it is submitted that due to non-cooperation attitude shown by the
claimant the pending DO could not be finalized. The claimant every time asked to attend the office
with site engineer for joint measurement, but every time the claimant fails to attend the office. The
claimant further complicates the issue by revising the DO every time and submits through post
without verifying the measurement on ground to Engr-in-charge. It is fact that contract obligation shall
be fulfils by both the parties for smooth functioning of work as pointed by the claimant contractor in
his Para 10. However, the intent for fulfilling the obligation of contract was not shown by the
Claimant.
iii. In continuation of non-cooperation along with malafide intention of claimant, the Ld Sole Arbitrator is
duly submitted that during one of the meetings of Claimant with CWE(AF) Tughlakabad on 17 Feb
2020, the Claimant contractor had stated that he had used 2 mm MS sheet in pre-cast cement
concrete drain cover. Therefore HQ CWE(AF) Tughlakabad had asked the gound executives to
confirm vide letter no. _____________ dt 17 Feb 2020. On re-verification of the same on the ground,
the thickness found was 1.22mm only (copy enclosed). Even though the claimant was very much
aware about the size of MS sheet used at site, the Claimant wants to create confusion to respondent.
This type of causal attitude is major roadblock in progressing the bill as well as in clearance of
pending DOs.
iv. Further, it is submitted that any details in regards with clarification on DO was asked by the claimant,
the claimant had not provided any specific details regarding the DO in contention. This type of unruly
and non-cooperative behavior of claimant is one of the major causes of non-finalization of DO by the
respondent.
v. The Claimant allegation regarding timely action regarding finalization of “Deviation Order / Work
Order ‘ in hypothetical , incorrect afterthought and hence not agreed to . Firstly the reference of
Manual on Contract given by claimant is not agreed as Manual on Contract is a book which contains
instruction for Deptt. Also the same is not form part of contract hence the reference of this book is not
tenable. Secondly the Claimant has never raised such issues during currency of contract and while
signing of Extension DOs. Now raising the issue is completely afterthought and hence denied in toto.
vi. As per condition-65 of contract, Claimant was required to submit the final bill duly with all supporting
documents to Engineer-in-Charge for his checking at his satisfaction. Whereas the Claimant vide his
letter no. ACC/CE(AF)/NGP/GUR/444/2015-16 dated 03 May 2019 (copy of letter enclosed and
marked as Annexure R-______) had submitted the final bill directly to GE office based on his own
assessed quantities in abstracts and that too without any reference of Measurement Books at his
own and without any supporting measurement details in support of quantities claimed in his final bill.
However to avoid further delay, the incomplete final bill and RAR were fwd to Engineer-in-charge
vide GE (P) (AF) Gurgaon letter No. 8315/46/660/E8 dated 04 May 2019 to complete it in all respects
and for further resubmission (copy of letter enclosed and marked as Annexure R-12).
vii. During check of final bill submitted by the Claimant, Engineer-in-charge had observed that the
quantities considered in the final bill in respect of various schedules i.e. Part-II, Part-V, Part-VII to
Part-XI were not as per MB quantities and they were not tallying with actual measurement recorded
at site of work. In this connection copy of AGE(B/R) (AF) Gurgaon letter No. CE(AF)
/NGP/GUR/46/2015-16Wed/E8 dated 15 May 2019 is annexed as Annexure R-13. Since there were
lot of deviations in the measurements of final bill submitted by the Claimant, final RAR and final Bill
were prepared by the Department based on site joint measurements completed in 1 st week of Aug
2019. There after the contractor was requested several times to attend this office for early finalization
of pending Variation Dos & other DOs and for signing the final bill and final RAR.
viii. Relevant and important contents of the letters of Respondent issued are brought out hereunder to
highlight the lackadaisical and reluctant attitude of contractor are given as under:-
(a) GE(P) (AF) Gurgaon letter No. 8315/46/687/E8 dated 24 Sep 2019 (letter enclosed as Annexure R-14)
States that since the Claimant was not attending the office since last two months for signing the documents
even after various message conveyed by executive staff to him telephonically as well as through his site
Engineer but he had not responded .
(b) GE(P) (AF) Gurgaon letter No. 8315/46/688/E8 dated 04 Oct 2019 ( letter enclosed as Annexure R-15)
Claimant was again requested to attend the office of HQ CWE Tuglakabad for signing of DOs and Variation
so as to finalize the Final RAR and Final Bills at the earliest.
(c) HQ CWE Tughlakabad letter No 85809/322/E8 dated 03 Dec 2019 ( letter enclosed as Annexure R-16).
With reference to Claimant previous letter No. ACC/CE(AF)/NGP/GUR-471/2015-16 dated 03 Dec 2019
Claimant was replied as under -
(i) Stated that payment of Final bill was pending due to non finalization of DOs which were related to
execution hence Claimant was requested to discuss the issues with Executive Staff so that issues
could be resolved.
(d) GE(P) (AF) Gurgaon letter No. 8315/46/714/E8 dated 11 Dec 2019 ( letter enclosed as Annexure R-17).
With reference to HQ CWE Tughlakabdad letter dated 03 Dec 2019 Claimant was requested to discuss the
issues with Executive Staff for early finalization the DOs.
(e) GE(P) (AF) Gurgaon letter No. 8315/46/722/E8 dated 18 Dec 2019 ( letter enclosed as Annexure R-18).
Giving reference to previous letter and also stated that in spite of repeated requests, Claimant had not
attended the office for the settlement of DOs and to avoid any further delay photocopies of DOs forwarded to
Claimant and he was again requested to liaise with Executive Staff to resolve the issue.
(f) GE(P) (AF) Gurgaon letter No. 8315/46/723/E8 dated 18 Dec 2019 (letter enclosed as Annexure R-19)
With reference to Claimant letter No. ACC/CE(AF)/NGP/GUR-482/2015-16 dated 12 Dec 2019 department
has replied as under :-
(i) Stated that Claimant had submitted the draft final bill on 03 May 2019 based on his own assessed
quantities he was once again requested to attend the office for joint measurement of disagreed portion
of DO details and for signing of DOs and final bill prepared by the Department based on actual work
done at site .
(g) GE(P) (AF) Gurgaon letter No. 8315/46/730/E8 dated 30 Dec 2019 (letter enclosed as Annexure R-20):-
With reference to Claimant was replied as under :-
(i) Department had explained the factual position of each and every DO and payments made to
Claimant based on the actual work done at site against the Claimant’s incorrect claim submitted for Rs
1,59,68,000.00 , hence the same was denied being false and incorrect as per work done at site.
(ii) Further stated that Claimant’s intention towards not accepting the minus DOs for the change already
made at site was un contractual and Claimant was again requested to cooperate with the deptt by attending
this office for joint measurement of disagreed portion of DO details and MB for early finalization of the same
and getting approval from higher authority so that final bill could be paid at the earliest.
(h) GE(P) (AF) Gurgaon letter No. 8315/46/731/E8 dated 30 Dec 2019 (letter enclosed as Annexure R-21):-
With reference to Claimant letter no. dt _____ , Claimant was replied as under :-
(i) Stated that Claimant was not cooperating with department to resolve the pending issues in spite of
various written as well as verbal / telephonic request therefore after one week GE office vide their
letter dated 18 Dec 2019 had fwd the scanned copies of all add back and other DO details and
again Claimant was requested to liaise with Engineer-in-charge to resolve the issues through joint
measurement at site instead of letter correspondence.
(ii) Further Claimant was again requested not to create hurdles and to cooperate with the department
by attending this office for joint measurement of disagreed portion of DO details and MB with final
bill.
(i) GE(P) (AF) Gurgaon letter No. 8315/46/738/E8 dated 21 Jan 2020. (letter annexed as Annexure R-22)
States that Claimant was still not cooperating with department to resolve the pending issue for difference
of opinion in measurement of DOs and cases for variation in quantities. Claimant contention that scanned
copies of DO details provided by GE were not legible not agreed as on verification it was seen that all the
document mailed to Claimant were legible. Moreover for early finalization of Final bill Claimant was
requested to collect the hardcopies of all DO details as per his desire from E-8 section of GE(P) Gurgaon
at any time during office working hours.
(j) GE(P) (AF) Gurgaon letter No. 8315/46/749/E8 dated 07 Feb 2020 (letter annexed as Annexure R-23).
Photocopies of all the DOs were provided to Claimant and further requested to go through the DO details in
accordance with site measurement and in case of any difference of measurement to liaise with Engineer-in-
charge for cross verification with the measurement recoded in MBs. Claimant was requested to take early
action so that final bill could be cleared at the earliest.
(k) GE (P) (AF) Gurgaon letter No. 8315/46/756/E8 dated 17 Feb 2020. (letter annexed as Annexure R-24)
Stated that photo copies of all the DO details were fwd to Claimant through mail and by hand also. During
discussion on finalization of pending dispute in HQ CWE on 13 Feb 2020 Claimant had further demanded
photocopies of MBs. Based on Claimant request and as per CWE direction copies of MB Nos P-403, P-645 &
P-646 provided to Claimant.
Claimant was again requested to sign document for DOs and variation cases, which were pending for
signature only and to process the final bill at the earliest.
(l) GE (P) (AF) Gurgaon letter No. 8315/46/774/E8 dated 02 Mar 2020. (letter annexed as Annexure R-25)
With reference to various previous letters of GE office & Claimant letter dated 24 Feb 2020, Claimant
contentions in his letter were denied being far from fact. Further stated that all the details as asked by
Claimant such as photocopies of MBs and DO details etc had provided various times through email, by post
and by hand. However Claimant had neither provided the measurement details nor commented on the same
and blaming the concerned executive staff for the same. Further Claimant was again requested to submit his
measurement details so that difference in measurements if any could be verified from ground and to be
corrected accordingly.
(m) GE (P) (AF) Gurgaon letter No. 8315/46/775/E8 dated 05 Mar 2020. (letter annexed as Annexure R-26)
With reference to Claimant letters dated 27 Feb 2020, Claimant allegations in his letter were denied being far
from fact. Claimant was again requested to submit his measurement details so that difference in
measurement if any can be verified from ground and to be corrected accordingly.
(n) GE (P) (AF) Gurgaon letter No. 8315/46/807/E8 dated 07 Aug 2020. (letter annexed as Annexure R-27)
With reference to previous reminders the Claimant was again requested to sign the document i.e. DOs and
final bills prepared by department.
(F). DELAY IN EVENTS OCCASIONED BY THE RESPONDENT.
i. The respondent denies and disputes the content there of save and except what are matter
on record.
a. DELAY IN FINALISATION OF DEVIATION ORDER OF INCREASE IN PLINTH HEIGHT AGAINST SCH

‘A’ PART-1A, SERIAL ITEM NO. 1,2,&3 (BUILDING & STRUCTURES)
(i) As explained earlier Para, the site was handed over on time, as the site layout was carried out by
claimant contractor on 12 May 2016 i.e. 3 day after handing over. The final layout decision was
conveyed on 17 May 2016.
(ii) The complete details of case are produced as under :-
(i) The work was commenced on 09 May 2016 & decision for processing the work with increased
plinth height was intimated to the Claimant, as acknowledged by his vide letter No
ACC/CE(AF)/NGP/GUR/__/2015-16 dt 19 May 2016.
(ii) The AIP and Draft DO details for Rs. 27,05,554.16(+) was initiated by the respondent as
submitted by the Claimant vide letter no. _______ dt_________. The same was returned by HQ
CE(AF) Nagpur zone letter no. 800841/153/E8 dt 05 Jan 2017 with the remarks that double lead
of filling of earth considered, non-using of retrieved soil in returning & filling under floor and to
conclude the BOO, if lead is involved for earth borrowed.
(iii) Accordingly, revised AIP & DO details was submitted after compliance of obsn and as per contract
provisions for (+) Rs 14,83,990.76 and processed to accepting officer vide letter no. 85809/128/E8
dt 14 Jun 2017.
(iv) However, in the meantime, the payment of Rs 14, 45,000/- has been released in 9 th RAR dt 07
Dec 2016, and the Claimant vide letter No. ACC/CE(AF)/NGP/GUR/148/2015-16 dt 14 Mar 2017
had acknowledge the receipt of payment of Rs. 14,45,000.00 against DO.
(v) Despite of the objection raised by the accepting officer, the claimant once again submitted the DO
details with increased amount of Rs 31,44,017.14 considering the double lead and outside bldg
site development earth work qty working out details.
(vi) It is also pertinent to mentioned that claimant remains stand on the amount of DO of Rs (+)
31,44,017.14 vide their letter No. ACC/CE(AF)/NGP/GUR/399/2015-16 dt 27 Feb 2019 i.e. after
04 months of completion of work.
(vii) Further, Claimant vide letter No. ACC/CE(AF)/NGP/GUR/462/2015-16 dt 15 Jun 2019 had again
revised the DO and increased amount of Rs (+) 39,99,645.22(F/668) .
(viii) Again, Claimant vide letter No. ACC/CE(AF)/NGP/GUR/540/2015-16 dt 06 Oct 2020 had
again revised the DO with increased amount of Rs (+) 40,67,567.23
(j) The HQ CE(AF) Nagpur Zone i.e. Accepting Officer vide letter no. 800841/325/E8 dt 28 Dec 2017
had directed to include 3mtr beyond the bldg work for earth filling as per PS Clause no. 2.7.1 of
instant contract.
(k) Accordingly, the revised draft DO was processed after taking final level sheet of the area vide GE
office letter no. 8315/46/68/E8 dt 17 Sep 2019.
(l) The AIP & Draft DO details after considering external earth work with bldg re-casted for Rs
14,79,704.27 (plinth ht increase except external earth work) + 4,20,626.10 (Ext earth wk) =Rs.
19,00,330.37 (Plus). The same DO could not be progressed due to non-cooperation meted out by
the claimant and submission of revised DO with different amount at regular interval.
(m) Since, the DO has the element of filling of soil under floor, the level sheet become important. The
Claimant had relied on their submitted level sheet no. 10560A/1 dt 24 Apr 2019 for ORs block and
10560A/2 dt 24 Apr 2019 for JCO block.
(n) The following comments are offered on the submitted Claimant DO dt 06 Oct 2020:
(i) The intial levels were taken jointly with contractor’s engineer and
JE(Civil) with reference to Bench mark mentioned on Page No 5 of level
register (copy enclosed) i.e. on centre of road on side of Garbage bin as
100.00 and PL of front verandah of bldg on opposite side of road. The
same levels arrived in level register plotted on graph sheet and signed by
all concern i.e. contractor, JE, Engr-in-charge and GE. The final level
sheet showing BM, initial levels and finished formation/floor levels duly
signed by all concern is also enclosed herewith.
(ii) On item wise comparison of DO details it is seen that quantities of all the
items are tallied with each other except RCC work by 2.70 Cum & Brickwork by 23.29 cum.
However, the earthwork items are deviated abnormally with actual quantities worked out by
deptt based on level sheets. Some of the facts out of that are as below:-
(1) Shifting of initial BM from Plinth floor level to plinth protection level at
the time of taking final levels, hence interpretation of plinth level of bldg
as plinth protection level is not correct, as plinth protection is always in
slope and also can settle in due course of time.
(2) While observing level sheet No 10560A/1 dated 24.04.2019 prepared
by Foundtek Consultants (P) Ltd. i.e. for OR Blocks, it is noticed that
initial levels of Chainage 0 to 125 with RD 0 to 30 are brought from
initial level sheets prepared by deptt and signed by contractor (the
same is not in dispute). However, levels from Chainage 0 to 125 with
RD 35 to 40 are not recorded by the Department (Level Sheet and
Level Registered can be Verified). Similarly the claimant contractor has
also manipulates the final levels of the spots “exists in bldg portion”
and plinth height was already achieved long back. On minute
observation of the level sheet, it is found that the Finished Floor Level
of buildings are shown different for entire buildings, which is not
possible.
(3) While observing level sheet No 10560B/1 dated 24.04.2019 prepared

by Foundtek Consultants (P) Ltd. i.e. for JCOs Block, it is noticed that
initial levels of Chainage 0 to 40 with RD 0 to 25 are brought from initial
level sheets prepared by deptt and signed by Claimant contractor.
However, levels from Chainage 0 to 40 with RD 30 to 35 and from
Chainage 45 to 65 with RD 0 to 35 are not recorded by the Department
(Level Sheet and Level Registered can be Verified). Similarly the
claimant contractor has also manipulates the final levels of the spots
“exists in bldg portion” and plinth height was already achieved long
back. On minute observation of the level sheet, it is found that the
Finished Floor Level of buildings are shown different for entire
buildings, which is not possible.
(4) During manipulation of final levels Claimant contractor has tried to
ensure that levels cannot be cross verified, that’s why he has not
shown the existing levels beyond the boundary of earth filling claimed
with certain depth of filling instead of zero at end, which intern arises a
doubt that how earth can be retained upto 1mtr height at free end.
(5) The copy of recent photograph of earlier existing building are attached
for perusal of Ld Sole Arbitrator.
(6) Further, the Copy of level sheet no. 6904/1 dt 17 Jan 2015 (Prior to this
project) duly signed by the CO,54 ASP is attached duly marking of
Plinth level of existing building. On comparing the final levels(shown
with green) with Claimant’s sheet, it is observed that area near existing
building was filled with 01 (one) meter (Approx) soil. However, the
existing building is functional as on date. This indicates that the levels
are manipulated and have no loci standii.
(7) Claimant has considered the payment for surplus earth to be disposed off outside as
per contract instead of re-using same for filling under floor for raised plinth height.
(8) Claimant not considered omission of transportation which activity not operated due to
utilization of surplus earth in same bldg.
(9) Claimant claiming rough excavation and its transportation from 15 Km outside for the
earth which is already available at site being retrieved from foundation.
(10) Claimant has not deducted the space occupied by the columns, plinth beams etc from
the total volume.
(11) Claimant has not deducted the volume of interlock tiles path including sub base as
levels taken are finished floor levels.
(12) Claimant has not deducted the volume occupied by inspection chambers, GTs etc.
(13) Claimant has considered total pocket of four blocks as single block, which is not as per
clarification given by HQ CE(AF) Nagpur.
(o) HQ CWE(AF) Tkd vide letter no. 85809/322/E8 dt 03 Dec 2019 had also replied the claimant
contractor letter ACC/CE(AF)/NGP/GUR-471/2015-16 dt 25 Nov 2019 duly stating the reasons for
non-finalization of DO.
(p) After long persuasion with Claimant contractor by the respondent, the claimant contractor had
signed the revised DO under protest and the same had been initiated by GE vide letter no.
8509/46/823/E8 dt 18 Sep 2020.
iii. In view of above, It is respectfully submitted to Ld Sole Arbitrator that the claimant had each time
increased the DO amount without providing any working/supporting details. Since, the main reasons
of dispute in above mentioned DO were the quantity of earth work, where the claimant contractor had
considered double lead i.e. filling by earth bought from outside the MoD land and not consider the
earth comes out from the excavation of foundation and other activities.
iv. It is further submitted that as per standard engineering practice that the excavated soil coming from
excavation of foundation or other activities at site, shall first used in RFR under floor. But to its
convenient the claimant contractor had not considered the same. This indicates the malafide
intention of the Claimant for creating confusion to respondent and shown the unruly non-cooperative
behavior in finalization of pending DO as well as other disputed points.
v. Since, both the parties have the responsibility to fulfill the contractual obligation. Such type of unruly
behavior and presenting misleading facts to respondent during meeting and well as on office clearly
shows the breach of contract. Even though, claimant was requested various time for verification of
the quantities catered in DO details but Claimant did not appear on site for joint measurement.
vi. However, the respondent had prepared the DO based on actual work done at site and in accordance
with the CA provision, which could not be finalized only due to confusion created by the Claimant.
Therefore, most humble the respondent submits to Ld Sole Arbitrator that the delay in finalization of
DO is totally attributable to Claimant only.
b. DELAY IN DECESIONS / APPROVAL OF SOLAR WATER HEATING SYSTEM
(i) The respondent denies and disputes the contents thereof save and except what
are matters of record.
(ii) It is respectfully submitted to Ld Sole Arbitrator that during quoting of tender the bidder has to quoted
his amount based on the tender provisions. Since, the tender had provision of list of make, the bidder
is supposed to quote his bid in accordance with items as per list of make. Since the make of solar
water heater is available in the tender, it can be assumed that the bidder will quote his rate
considering the availability and rate of material in market.
(iii) However, in case of extreme situations of non-availability of materials, the contractor during
execution can request to department for change the make duly attaching the non-availability
certificate of manufacture of all the make listed in the CA.
(iv) The Ld Sole Arbitrator attention is invited to Para 22 of claimant contractor under he himself admitted
that based on discussion, he had proposed the name M/S Roohi ___ fabrications Pvt Ltd without
submitting non-availability certificate. This indicates that the Claimant had previously knowledge of
the non-availability, but conveniently choose to remain silent during its quoting days.
(v) However, in reply, the GE vide letter No. ___ dated 17 Feb 2017 had directed the claimant to
progress the work as per CA provision.
(vi) It is further stated that claimant contractor had only submitted the non-availability of one of the make
listed in PS. Accordingly, the HQ CE (AF) Nagpur vide letter No. 800841/216/E8 dated 25 May 2017
(F-336) had directed the following: -
The same is intimated to the claimant contractor vide GE letter 8315/46/337/E8 dated 15 Jun 2017.
(vii) Since then, the claimant contractor had not raised any point related to Solar Water Heater till 30 Nov
2017 i.e. upto 5 months on the subject case. Therefore, It is respectfully submitted to The Ld Sole
Arbitrator that if the project was delayed for such reason and claimant is incurring loss, he should
have submitted the all-requisite details then and there to resolve and to arrive at appropriate solution
by the Accepting Officer. Furtherance, it is submitted that no representation on the Accepting Officer
decision as per Para (v) here-in-above till 30 Nov 2017 was raised by the Claimant. Thus, it is
interpreted that the claimant contractor with his mischievous intension had not taken the case within
its due time and deliberately delayed the intimation of approval for using makes other than specified
in CA.
(viii) It is further submitted that once the claimant contractor re-submitted his case the approval was
accorded vide HQ CE (AF) Nagpur letter No. ______ dt 27 Dec 2017 i.e. with minimum possible
time.
(ix) In addition to above, it is respectfully submitted that “List of Make” is part of the contract agreement.
Therefore, these manufactures can be considered as nominated manufactures. Since the delay
completion of projects had happened due to non-production/ non-availability of product(s) by these
manufacturers. Thus, the situation is beyond the control of respondent as well as Claimant.
Therefore, the respondent had accorded time extension under the absolute discretion of Accepting
officer for situations beyond contractor’s control. However, the delay can be avoided by timely
submission of requisite documents from all listed manufacturers of CA by the Claimant.
(x) In view above, it is respectfully submitted to Ld Sole Arbitrator that the reciprocal obligation of
contract was not fulfilled by claimant contractor and the delay happened in necessary approval was
only due to lethargic approach of the claimant.
c. DELAY IN APPROVAL OF MATERIAL FOR PRELAMINATED PARTICLE FOR WARDROBES AND

MODULAR KITCHEN.
i. The respondent denies and disputes the contents thereof save and except what
ii. At the outset, the Claimant contractor had not named any brand vide his letter No. ____ dt 15 Mar
2017 while asking details of Wardrobe. However, the Engineer—in-Charge vide letter No. ____ Dt 14
Jul 2017 (F/370) had stated that Claimant contractor had submitted the shade of Green Lan
Industries Ltd as sample and same has been approved by GE (P) Gurgaon.
iii. Further, the claimant contractor vide his letter No. ___ dt 10 Jun 2017 (F/342) had submitted his
desire to use make “Action TESA” (not in the make list of CA) incoherent to the sample approved by
GE, without submitting non-availability certificate of other make listed in CA.
iv. The Ld Arbitrator is apprised to the fact that approval of make other than listed in CA shall only be
accorded in case of special circumstances. Therefore, proper market enquiry is require so that no
intended benefit accrued to contractor.
v. Furtherance, to facilitate early completion of work, HQ CWE (AF) Tkd vide letter no. _______
dt_______wrote letter to one of the manufactures as requested by the claimant (F/158) to supply the
materials at the earliest. Thus, it can be said that the respondent had cooperated with the Claimant at
every step in facilitating execution of work smoothly. On the other hand, the same cooperation had
not been shown by the claimant during execution as well as after completion.
vi. As no response received from the manufacturers, HQ CWE(AF) vide letter no. _________ dt
_________ (F/425) had directed the GE to confirm the availability of board in the market. The GE
vide letter No. (F/437) had submitted his report and accordingly the Accepting Officer had accorded
the approval of make “Action TESA” vide letter No._______ dt________. Thus, it is submitted that the
action in resolving the hindrances were taken very promptly by the respondent once non availability
of material established.
vii. In view of above, it is most respectfully submitted to Ld Sole Arbitrator that the respondent had not
delayed the action in approving other make, rather it is other way round. If the contractor had
produced the non-availability in its first instance, the decision would be conveyed according. But the
claimant deliberately delayed the case and left to department (respondent) to check the non-
availability of materials. Owing to this, it is submitted that the delay in approval of make is totally
attributable to claimant contractor.
d. DELAY IN DECESION WITH REGARD TO INESCAPABLE ITEM OF WORK VIZ WATER PROOFING
TREATMENT TO SUNKEN FLOOR IN SCHEDULE ‘A’ PART—1 A S NO. 1, 2 & 3 (BUILDING AND
STRUCTURE)
i. The respondent denies and disputes the contents thereof save and except that are matter of record.
ii. The statement made by the claimant is far from fact. The claimant firstly vide letter No ___ dt 24 Jan
2017 had asked the Additional DO for Sunken floor treatment. However, the GE vide letter No. ____
dt 17 Feb 2017 had clarified to execute the work as per TD No. CE (AF)/NGP/TD-80/2007 sheet 1/1
(copy enclosed) forming part of contract agreement.
iii. Thereafter, the claimant contractor had again asked the AIP for water proofing treatment to sunken
floor vide letter No. ____ dt 06 Mar 2017. Further, the claimant contractor vide letter ____ dt 31 Mar
2017 (F/269) had stated that “As per discussion held on 30 Mar 2017 with the Dir (Contracts) of
CE(AF) Nagpur regarding “Water proofing treatment to sunken floor”, we have considered only the
15 mm thick plaster (1:4) with WPC in the sunken floor. Any other provisions/specifications are to be
carried out for the work of sunken floor treatment that the same should be necessary (+) DO.”.
However, such type of instruction had never being ordered by HQ CE(AF) Nagpur zone.
iv. In the mean time, respondent had initiated the draft DO as per zonal specification on direction of
CWE (AF) Tkd for an amount of Rs. 2,12,862.51(+) vide GE letter No. ____ (F/273). However, the
claimant further submitted the DO as per Zonal specification for an amount of Rs. 6,16,835.55(+) to
the Accepting Officer. Since, the ground executives are GE/AGE, as per practice in vogue the draft
DO shall be submitted to division/SD for verification and feasibility, but the claimant contractor with
his mischievous motive had submitted the DO direction to Accepting Officer rather than ground
executive only to delay the matter.
v. It is submitted that the claimant contractor on 27 Apr 2017 had submitted the case for using
conventional type water proofing treatment but later changed the specification for using liquid
membrane In lieu of APP Membrane. It is therefore, pertinent to mention that the case for approval of
AIP as per zonal specification had already been initiated by the respondent till date. Thus, changing
specification in the mid way only created confusion. It is therefore submitted that such confusion was
only created by the claimant for his ulterior motive to divert attention and keep busy the respondent in
infructuous correspondence.
vi. In view of above, the Ld Sole Arbitrator attention in invited to the fact that, if the contractor was so
much concern about their losses as well as timely completion of work, they would have submitted
their case for using liquid membrane at the initial stage, so that necessary decision can be taken on
priority. However, the Claimant contractor resorted to mislead and confuse the respondent and
changed the specification in the mid way of its approval as per initial specification. Therefore, the
claimant is solely responsible for creating such confusion and delay thereafter.
vii. When the Claimant had clarified his mind to use liquid membrane for water proofing treatment, the
respondent had initiated the AIP case for using liquid membrane for Rs. 1,68,599.05(+) vide GE
office letter No. ____ dt 15 Sep 2017 (F/432). The Go-Ahead by Accepting Officer for case of liquid
membrane was accorded vide HQ CE (AF) Nagpur letter No. ___ dt 13 Oct 2017 (F/442). It is
therefore submitted that the Go-Ahead was accorded immediately after the confusion creating the
claimant was cleared.
viii. Furtherance, most humbly, the Ld Sole Arbitrator is apprised to the fact that the Go-Ahead of the
execution of water proofing treatment is being issued based on the quotation of Dr. Fixit submitted by
the claimant contractor. However, as per policy in vogue, the original purchase voucher is required to
be submitted by the contractor for preparation of star rate. However, the claimant contractor despite
of various notices and letter (GE letter no. 8315/46/730/E8 dt 31 Dec 2019) had not submitted the PV
for finalization of star rate. Since the claimant contractor is working contractor in MES and very well
versed with the policy of finalization of star rate. Even though, the claimant had not cooperated with
the respondent on finalization of star rate and the DO accordingly. The Claimant contractor was
adamant with his own version of star rate. Even his submitted star rate has not mentioned of any
purchase voucher rater, it has mentioned of the quotation only. Thus, the delay in finalization of star
rate is totally attributable to claimant not with the respondent.
ix. Therefore, as evident in previous Para, the respondent had put his best effort to finalize the DO, but
non-cooperation and adamant behavior of Claimant had put the respondent with no choice other than
to pay the amount as calculated vis-a-viz contract conditions.
x. In view of above, It is most humbly submitted to the Ld Sole Arbitrator that claimant with ulterior
motive mindset had not cooperated with respondent in finalization of DO, therefore the claim of
claimant shall be rejected in Toto.
e. ADDITIONAL WORKOF GRIT WASHES PLASTER EXECUTED AND COMPLETED IN OR’s BLOCK,
MARRIED ACCOMODATION QUARTERS AGAINST SCHEDULE ‘A’ PART-1A SRL NO 1 & 2
(BUILDING AND STRUCTURE)
i. The respondent claims and dispute the contents thereof save and except what are matter of record.
ii. It is fact that the Accepting Officer during site visit on 01 Apr 2017 had ordered to execute Grit wash
plaster in ORs block (copy of site order book dt 01 Apr 2017 is attached). However, the Draft DO was
already initiated by GE vide letter No. ____ dt 10 Mar 2017 for an amount of Rs. 15,77,147.29(+)
duly signed by claimant contractor with under mentioned specification of grit wash plaster: -
“Washed stone grit plaster on exterior walls in two layers, under layer 12mm cement plaster
1:4 (1 cement: 4 coarse sand ) furrowing the under layer with scratching tool, applying
cement slurry on the under layer @ 3 Kg of cement per square metre, top layer 15mm
cement plaster 1:1/2:2 (1 white cement: 1/2 coarse sand : 2 stone chipping 10mm nominal
size) in panels with groove all around as per approved pattern including scrubbing and
washing, the top layer with brushes and water to expose the stone chippings complete all as
specified (Payment for providing grooves shall be made separately).”
iii. Accordingly, the AIP approval of Accepting Officer vide letter no. 800841/257/E8 dt 09 Aug 2017 for
using grit wash plaster as per above specification had been conveyed to claimant vide GE letter No.
___ dt 29 Sep 2017 (F/428). It is also submitted that the claimant had also prepared a sample grit
wash plaster, which was duly approved by user as per Claimant letter no.________ dt 29 Sept 2017.
iv. However, the claimant contractor had refused to sign the typed DO No. 3 (P) without assigning any
reason thereof. In the meantime, the user vide letter No. 54ASP/4003/362/Wks dt 15 Nov 2017 had
intimated to use grey cement in grit wash plaster in lieu of white cement. Accordingly, the work was
executed at site. Therefore, the revised draft DO was re-initiated considering grey cement in lieu of
white cement. However, the payment of Rs, 8,50,000.00 was paid the claimant to ease out their
financial stress.
v. The Ld Sole Arbitrator’s attention is invited to the fact that the claimant had not objected on the
payment received which corroborated of the fact that the work was executive using grey cement.
vi. The claimant vide letter No. ___ dt 25 Aug 2018 had submitted his version of DO, under, he had
admitted of using grey cement. However, the rate considered for that item was not as per SSR rate.
Also, he had increased the quantities to 7826.75 Sqm from 6115.00 Sqm. However, it is pertinent to
mention that the work of grit wash plaster was completed till then. Thus, the submitted DO shall be
prepared based on the actual specification.
vii. Since then, the Claimant contractor had submitted various revised Draft DO with changing
specification. Accordingly, the Accepting officer had detailed a rep of HQ CWE(AF) Tughlakabad to
verify the type of cement used on ground. The rep officer had submitted the statement that the work
was executed with grey cement only (copy attached). It is also submitted that the Engr-in-Charge
vide letter no ______ dt 20 Jun 2020 had also clarified that______.
viii. Furtherance, it is submitted that if the work was executed through white cement, covering an area of
6000 sqm requires a lot of white cement. In this connection, it is submitted that the claimant had
never taken the sample approval of white cement as per Special Condition Clause no. 22.4 forming
part of contract. However, neither such approval was found on record nor submitted by the claimant.
In addition, the respondent had many times requested for submission of the purchase voucher of
white cement to verify the claim of claimant.
ix. Furtherance, the condition 10 of IAFW-2249 is reproduced here as under:
“(A) Materials to be provided by the Contractor – The contractor shall, at his own
cost and expense, provide all materials required for the Works other than those listed in
Schedule „B‟ which are to be supplied by Government. All materials to be provided by the
Contractor shall be new and in conformity with the specifications laid down in the Contract
and the Contractor shall, if requested by the Engineer-in-Charge, furnish proof, to the
satisfaction of the Engineer-in-Charge that the materials so comply. However if the cost of
particular item of material in a contract exceeds Rs 1 lakh, there material shall be procured
only from the manufactures or from their authorized dealers/stockists (except in case of
materials of local origin) and the Contractor shall furnish proof thereof to satisfaction of the
GE that the materials so comply.”
Since, the Claimant had an obligation as per expressed contract conditions to produce
purchase voucher, if asked by the respondent. The Claimant had failed in fulfilling this obligation,
clearly indicate that the work was executed by using grey cement only. Thus, the claimant statement
in his Statement of Claim that “the work of Grit wash plaster was also been completed in present of
officers of the Respondent as per provision/PS given in CA” is totally wrong and baseless and shall
be rejected outrightly.
x. The payment of Rs. 8,50,000.00 was made to contractor, therefore stating huge amount was blocked
by respondent is not correct and shown out of proportion and without any justification.
xi. Furtherance, it submitted that the initially, the AIP was accorded with 12 mm under layer and 10 mm
nominal size stone chips. The Claimant contractor had raised claim by considering 15 mm under
layer and marble chips. However, no such order as per condition 7 of IAFW 2249 was given in writing
either by Accepting officer or GE. It is further clarified that the marble chips are also a type of stone
chips. Since no such specific stone chips is specified in the items, the claimant has full liberty to
execute the work with any stone chips which is beneficial to him. Also, as explained in Para vi here-in
above, the Claimant contractor had himself submitted draft DO with Stone chips on 25 Aug 2018.
Thus, the claimant himself consider marble as a stone like respondent and accordingly submitted the
DO at that time.
xii. The Ld Arbitrator attention is invited to the fact that even the AIP was accorded by the Accepting
Officer before the execution of work, the work shall be executed as per approval. However, the
Claimant contractor to his convenient had changed the specification and created the confusion and
extended non-cooperation towards finalization of revised DO. Thus, delay occurred in finalization of
DO is totally attributable to claimant contractor only rather than respondent. The Ld Sole Arbitrator is
requested to reject his claim outrightly.
f. INCREASE IN QUANTITIES OF INTERNAL / EXTERNAL B& R / E& M SERVICES DURING THE

EXECUTION OF WORK AT SITE
ii. In this connection, Condition 6 of IAFW-2249 produced here-as-under:
“Provisional Items – The amount pertaining to provisional items need not be deducted from the
contract sum. The Engg-in-Charge and Contractor shall set out the works covered under provisional
items and provisional lump sum based on the description of items, drawing forming part of CA and
considering the ground conditions as encountered at site of works. The statement of variation in
quantities, new items or deletion of items from the contract agreement as required will be worked out
for approval of Engg-in-Charge who will convey approval of such changes through site order book.
For the purpose of payment the variation in value of work executed under these items shall be
ascertained by measurement or valuation as for deviation. The variations shall be regularized as per
Condition 7.
The extent of quantities or items described as “provisional” shall not be varied beyond the
limits laid down in condition 7.
No addition or deduction shall be made by contractor to the amount of provisional lump sums
as include in the tender documents.”
iii. It is submitted that the finalization of DO of certain Schedule was not done due to non-cooperation by the
Claimant. However, payment upto CA qty was made as and when RAR raised.
iv. In view of above, it is most humbly requested to Ld Sole Arbitrator that the pleas of Claimant shall be
rejected.
g. PROVISION OF PUMP ROOM FOR THE INFRASTUCTURE OF BOREWELL

ii. The AIP & DO details along with drawing initiated duly signed by Claimant without any remark and
processed from CWE to AO for Rs. 3,18,571.51 (Plus) was initiated by GE vide letter no. based on
the Claimant letter no. ACC/CE(AF)/NGP/GUR/269/2015-16 dt 03 Feb 2018 and HQ CWE letter no.
_________ dt________ for Provn of pump room for infrastructure of borewell.
iii. The AIP & DO details along with drawing initiated was duly signed by Claimant without any remark
and the same is processed for approval for Rs. 3,18,571.51 (Plus).
iv. The AIP Approval was accorded by AO for Rs 3,18,571.51 (Plus) vide HQ CE(AF) Nagpur letter No
800841/405/E8 dt 29 Jan 2019 with following specification: -
(a) Size of Room is 4.26 x 4.26 m (Outer to Outer)
(b) 15 mm thick external plaster
(c) Size of window – 1.2m x 1.2 m and No. of window -03
(d) Size of ISMB for chain pulley to lift pump= ISMB250
v. However, it most humbly submitted that draft DO details were signed without any protest by claimant
at the time of initiation of AIP. But, after obtaining AIP approval, typed DO was placed and claimant
was requested to sign the but claimant refused to sign on DO No 8 with the plea that certain following
deviation made by him during execution: -
(a) Size of Room is 3.80 x 3.70 m (Outer to Outer).
(b) Use Washed grit stone plaster in lieu of 15 mm thick External Plaster.
(c) Size of window -1.00m x0.60m and No. of window-02
(d) Size of ISMB for chain pulley to lift pump - ISMB125.
In this connection, it is submitted that, the above changes were carried out
by the Claimant without any direction received from the respondent. The intention
of Claimant can be deduced from the fact that, even though he had signed the
Draft DO without any remarks, he changed the specification during execution of
work.
vi. Since claimant had made above changes in execution of pump room from the approved drawing. The
revised AIP & DO details for (+) Rs. 2, 43,229.08 as per actual wk executed at site was initiated.
Claimant was requested various times for the signing of the DOs vide letters mentioned in para 7 of
pleading in defence above which had resulted in delay in finalization of DO. However, the draft Do
was signed by Claimant with remarks “signed under protest “DO of grit wash is not
priced correctly (item of grit wash)”.
vii. In this connection, it is submitted that the work of grit finish was executed by the claimant without any
written order from respondent. The respondent prepared the DO based on the grit finish plaster as
per order given in OR’s Block.
viii. It is therefore, most humbly submitted to Ld arbitrator that the claim of Contractor shall be rejected
and consider the DO prepared by the respondent final.
(G) QUANTIFICATION OF CLAIMS OF ENTITLEMENT.
a. AN AMOUNT OF RS 1,75,07,072 TOWARDS THE WORK EXECUTED AND COMPLETED AGAINST THE
CONTRACT AGREEMENT NO. CE(AF) NGP/GUR/46 OF 2015-16: PROVN OF MARRIED ACCN FOR
DSC PERSONNEL AT GURGAON SUBMITTED BY M/S ASSOCIATED CONSTRUCTION CO ON 03 MAY
2019. REVISED BILL FOR PAYMENT SUBMITTED ON 18 MAR 2021.
i. The respondent denies and disputes the contents thereof save and except what
ii. In this connection Condition 65 of IAFW-2249 is reproduced here-as-under: -
“Final Bill (Applicable only to Measurement and Lump Sum Contracts).-
The Final Bills shall be submitted by the Contractor on IAFW-2262 in
duplicate within three months of physical completion of the works to the
satisfaction of the Engineer-in-Charge. It shall be accompanied by all abstracts,
vouchers, etc., supporting it and shall be prepared in the manner prescribed by the
G.E.
No further claims shall be made by the Contractor after submission of the
Final Bill and these shall be deemed to have been waived and extinguished.
The Contractor shall be entitled to be paid the final sum less the value of
payments already made on account, subject to the certification of the final bill by
the G.E.
No charges shall be allowed to the Contractor on account of the preparation
of the final Bill.”
iii. The Condition 65 -IAFW 2249 clearly states that the final shall be submitted only one for
one contract. However, the claimant contractor had submitted the final bill twice, which is
not in order as per expressed condition of contract. Therefore, the respondent prays that the
final bill submitted by the Claimant on 18 Mar 2021 shall be outrightly rejected.
iv.The brief change in both the final bill are summarized as under:
Amount as per Final Amount as per Final Remarks

Bill submitted on Bill submitted on
dated 03 May 2019 dated 18 Mar 2021
Schedule-A, Part-I(A) Building and 66960000.00 66960000.00
Structures
Schedule-A, Part-I(B) Garbage Bin. 90893.38 88499.20
Schedule-A, Part-II, Excavation and 1572696.71 1695851.55
Earth work
Schedule-A, Part-III, Internal Water 1333246.78 1405569.47
Supply
Schedule-A, Part-IV, Internal 1075060.11 1184697.96
Electrification
Schedule-A, Part-V, Road/Path 2174835.00 2218362.70
Schedule-A, Part-VI, Ext Water 870434.59 859099.62
Supply
Schedule-A, Part-VII, Ext 925693.96 911713.62
Electrification
Schedule-A, Part-VIII, Area 1182624.19 1174069.85
Drainage
Schedule-A, Part-IX, Sewage 691500.02 691500.02
Disposal
Schedule-A, Part-X, Rain Water 91552.47 68884.54
Harvesting
Schedule-A, Part-XI, Misc B/R and 12546291.00 12962417.00
E/M items
Pump Room 288709.00 279628.00
Sunken Floor 470116.37 470116.31
Grit Wash finish 4768931.04 7115152.55
Plinth Height increase. 3999645.29 4067567.23
Ceramic tile inlieu of Vitrified tile 642093.96
Provn of Pre-laminated board in
lieu of teak wood shutter.
v. The details of variation in quantities as prepared by respondent are as under: -

Schedule of Work Amount Status
Total/variation w.r.t CA amount
Schedule-A, Part-I(B) Garbage
Bin.
Schedule-A, Part-II, Excavation
and Earth work
Schedule-A, Part-III, Internal
Water Supply
Schedule-A, Part-IV, Internal
Electrification
Schedule-A, Part-V, Road/Path
Schedule-A, Part-VI, Ext Water
Supply
Schedule-A, Part-VII, Ext
Electrification
Schedule-A, Part-VIII, Area
Drainage
Schedule-A, Part-IX, Sewage
Disposal
Schedule-A, Part-X, Rain Water
Harvesting
Schedule-A, Part-XI, Misc B/R
and E/M items
(ai) CLAIM No. 1 (A): PAYMENT OF WORK FOR INCREASE IN PLINTH HEIGHT IN ALL BUILDINGS
AGAINST SCH A PART-1A SRL ITEM NO. 1, 2& 3 (BUILDING AND STRUCTURE) FINANCIAL EFFECT OF
RS. 40, 67,567.23 (+)
i. The respondent denies and disputes the contents thereof save and except what are
matters of record.
(ii) As already explained in Para 2F(a) here-in-above. Briefly, It is submitted that after the site was
handed over, the layout was finalized by the department on 17 May 2016. The level register duly recording of
all the level along with reference of Bench mark were prepared and signed by all the parties (Copy attached).
The claimant at that time had not objected on the entry of BM on the level register. Further, the level sheet
was prepared based on the RL calculated in the level register. The initial level sheet was not in dispute by the
claimant.
(iii) It is fact that the respondent agreed for initiation of DO for increase of plinth height in term of PS
clause No 2.7.1 of CA.
(iii) The Claimant’s claim for this reason varies from Rs 31,44,017.14 to 40,67,567.23. The details of
amount claimed by the claimant during the execution and post execution are summarized. The copy
is attached for the perusal of Ld Sole Arbitrator.
(iv) On item wise comparison of the Claimant DO with respondent DO, following points are observed:-
a. The Claimant has consider the double lead of earth work and not considered the soil
obtained from excavation of foundation. Also, the Claimant while calculating the earth filling had not
deducted the PCC, sand and tile thickness from the RL.
b. On observing the level sheet submitted by the Claimant, the FFL level of each building is
variable. However, as per standard engineering practice, the FFL level of one building shall remain
one. This indicates that the submitted Level sheet is manipulative and shall be rejected.
(v) The respondent had paid an amount of Rs 14,45,000/- vide 9 th RAR at 07 Dec 2016.
(vi) In view of above and explained in Para 2F(a), the respondent respect fully submits before Ld Sole
Arbitrator that the Claim of Rs 40,67,567.23 is based on wrong calculation, thus shall be rejected in
toto and only award Rs 19,00,330.37 (14,79,704.27 + 4,20,626.10) against this claim.
(aii) CLAIM No. 1 (b): PAYMENT OF DO FOR PROVN OF DOCTOR FIXIT WATER PROOFING
TREATMENT TO SUNKEN SLAB AGAINSTS SCH ‘A’ PART-1A SRL ITEM NO. 1, 2& 3 (BUILDING AND
STRUCTURE) AMOUNT TO RS. 4, 66,716.56 (+)
(ii) As explained in Para 2F(d) here-in-above. Briefly the details of water proofing treatment are
submitted.
(iii) It is fact that the water proof treatment was mentioned in TD drg No CE (AF)/NGP/TD-80/2007 sheet
1/1 forming part of contract. Also, the Claimant vide letter no. ______ dt 30 Mar 2017 had admitted that only
the type of treatment was not specified in the Contract and requested for necessary plus DO. Accordingly, the
DO was initiated for an amount of Rs 2,12,862.51 (+) as per Zonal Specification. However, the Claimant
submitted DO for an amount of Rs 6,16,835.55 (+) as per Zonal specification.
(iv) It is further submitted that the case as per Zonal Specification was under process, the claimant in the
meantime had changed the specification and requested to use liquid membrane instead of APP membrane.
The respondent to save the time and for sake of early completion had accorded the Go-Ahead based on the
quotation received from Dr Fixit (F-1442).
(v) The condition 62 (G) states that If any Work, the rate for which cannot be obtained by any of the
methods referred to in pars (A) to (E) above, has been ordered on the contractor, the rate shall be decided by
the GE on the basis of the cost to the contractor at site of works plus 15% to cover all Overheads and Profits.
(vi) Thus, as per Condition 62(G) of IAFW-2249, the Claimant shall have to submits their cost at site of
works, i.e., purchase voucher (PV) of items involved. However, the Claimant till date had not submitted the
PV for preparation of Star rate (rate which is not in Contract). Therefore, delay in preparation of DO is solely
caused by the Claimant only.
(vii) On items wise comparison of DO following points are observed: -
a. The Claimant had not deducted the Cinder concrete as mentioned in TD Drg.
b. The Drg have mentioned of 15 mm thick plaster with WPC, thus same shall not be considered in
start rate.
c. Consideration of CP&OH 17.5% in lieu of 15 %
d. Consideration of GST @ 18% even though the same is @ 12 %. Also, the rate of materials in
inclusive of GST. As per practice in vogue, rate of materials shall be exclusive of GST.
(viii) In view of above and as explained in Para 2F(d), the respondent respectfully and humbly submits
that the claim of Claimant shall be rejected as the rate prepared by the Claimant is wrong and allow the DO
prepared by the respondent only.
(aiii) CLAIM No. 1 (c): PAYMENT OF DO FOR PROVN OF EXTERNAL GRIT WASH PLASETER TO OR’s
QUARTER AGAINSTS SCH ‘A’ PART-1A SRL ITEM NO. 1 & 2 (BUILDING AND STRUCTURE) AMOUNT TO
RS. 71,15,152.55 (+)
(ii) As explained in Para 2F(d) here-in-above. Briefly the details of water proofing treatment are
submitted.
(iii) The work for Grit plaster was ordered during site visit of Chief Engineer on 01 Apr 2017. Even before,
the respondent, actively initiated the proposal in the month of Mar 2017 for the same. The claimant
during the submission of case had signed the abstract having specification of top layer with “white
Cement” and Areas as 6115 Sqm. The AIP was accorded by the Accepting Officer and conveyed to
claimant vide (F-1428).
(iv) But, the claimant had not signed the typed DO No 3(P) without assigning any reason. However, as
per user requirements, the work was executed by using grey cement only. Therefore, to regularize
the change the revised DO was initiated by respondent. Also, payment of Rs 8,50,000.00 was made
to claimant to ease out this financial stress.
(v) On item wise comparison of submitted DO viz-a-viz respondent’s DO, following points are
commented: -
a. The Claimant had claimed to use marble chips in lieu of stone chips - In this connection
it is submitted that the Claimant had given order to execute the work with stone chips only.
However, type of chips was not mentioned. Further, it is stated that no written order either by GE
or Accepting officer was given to use marble stone chips. Therefore, the Ld Sole Arbitrator is
being submitted that the marble is also a stone, therefore the rate considered by the respondent
for grit finish plaster top layer shall hold good.
b. The Claimant had claimed 15 mm under layer - No such order given to the
Claimant by respondent. Thus, the same is denied.
c. The rate considered for Grit finish plaster as per SSR-14021 is Rs. 305.50 in lieu of Rs. 406.20.
d. Quantity considered in DO is not correct.
e. As per Para 1.14.2 of General rules of SSR-Part-II, the SSR rate is upto and including four storey
building, thus claiming extra 10% for Four storeys building is not correct.
f. The contractor had not carried out Acid wash in OR block as per Engr-in-charge letter no.______
dt 20 Jun 2019.
g. Claimant claim of moulding work is denied because no special architecture work was involved in
specification of item.
(vi) In view of above and as explained in Para 2F(e), the respondent respectfully and humbly submits
that the claim of Claimant shall be rejected as the rate and quantity submitted by the Claimant is
wrong and award the amount as per DO prepare by the respondent only.
(aiv) CLAIM No. 1 (d): PAYMENT OF DO FOR PROVN OF NON SKID CERAMICS TILEE IN LIEU OF DOUBLE
CHARGED VITRIFIED TILE AGAINST SCH ‘A’ PART-1A (BUILDING AND STRUCTURE) AMOUNT Rs
6,42,093.96(+)
(ii) The claimant clearly had not stated the location of change in its claims. However, it is clarified that
the instant DO has two parts namely 1st part as Provision of Non-skid ceramic tiles I lieu of Double
charged vitrified tiles in JCO block and 2 nd part as Provn of Granite stone flooring in lieu of non-skid
ceramic tiles in passage area & on cooking platform in lieu of Cuddapa stone and other misc work in
Ors block against Sch’A’-Part-1(A).
(iii) In this connection, it is stated that the both the work had been executed without any written order
from the GE or the Accepting officer. The respondent has right to devalue the work as per Condition
46 of IAFW-2249, if the executed work is technically accepted. Therefore, the Accepting officer had
devalued the work of 1st part for an amount of Rs 1,93,608.54(minus). The same was conveyed to
claimant vide GE(P) AF Gurgaon vide letter No. 8315/46/927/E8 dated 17 Jun 2021.
(iv) However, the granite flooring in passage area and on cooking platform and wardrobe slab, no
written/verbal order was provided to Claimant by respondent. The condition 7 clearly states that the
contractor shall not make any alteration in, addition to or omission from the Works as described in th
tender documents except in pursuance of the Written order/instructions of the GE. The Claimant had
altered the specification specified in ORs block on its own without any written permission from GE.
Thus, the respondent denies any responsibilities of such change and consider this as a breach of
contract. While changing the specification, the respondent stipulates that Claimant may be getting the
granite stone cheaper than Cuddapa stone in this vicinity, therefore the change has been made.
(iii) In view of above, the respondent respectfully and humbly submits that the claim of Claimant shall be
rejected as no such order for alteration of specification had been passed by the GE or the Accepting
officer.
(av) CLAIM No. 1 (E): PAYMENT OF SCH ‘A’ PART-II EXCAVATION AND EARTH WORKS:AMOUNT RS
16,95,851.55(+).
(ii) As explained in Para 2F(a) here-in-above, the reason for change in quantity of earthwork is mainly
due to difference in finished level as per final level sheet submitted by contractor and prepared by
respondent.
(iii) It has already been proved that the level sheet submitted by the claimant is manipulative and
baseless.
(iv) Furtherance, apart from the comments as per Para 2F(a) on correctness of level sheet, following
other points relevant to Sch ‘A’-Part-II DO as submitted by Claimant are also summarized:
a. Contractor has not considered deduction of 10% for bulkage as per clause 3.6
of SSR-2010 part-II in his calculations submitted with his letter under reference.
b. Contractor has not deducted the earth filling for bldg portion and 3 mtr all-round
the bldgs as already considered in DO for increase in plinth height, which is
doubling of same earthwork.
c. Contractor has not deducted the space occupied by the drain PCC, brick walls
& drain sectional area.
d. Contractor has not deducted the volume of interlock tiles path including sub
base, road including soling, WBM & carpeting as the levels taken are finished
floor levels.
e. Contractor has not deducted the volume occupied by inspection chambers,
Manholes, etc.
f. Contractor has not deducted the volume of pole foundations, panel foundations
etc.
g. Contractor has not deducted the quantities of surplus earth retrieved from
external water supply, external electric lines from rough excavation at outside
and its transportation, only 50 mtr lead is applicable for payment.
(v) In view of above and reason explained in Para 2F(a), the respondent respectfully and humbly
submits that the Claim of the Claimant shall be rejected and award the amount as per DO prepare by
the respondent.
(avi) CLAIM No. 1 (F): BALANCE PAYMENT DUE SCH ‘A’ PART-III INTERNAL WATER SUPPLY WORK
AMOUNT RS. (14,05,569.47-10,36,291.66)=3,69,277.89(+)
(ii) The details of quantities against each item had not been submitted by the claimant. Thus, the claim
shall be rejected out rightly. However, the Claimant had signed the Variation proforma without any remarks
for an amount of Rs 11,25,000.56 (total amount) with variation of Rs 4,95,008.71(+).
(iii) Further, The BOQ item No 84 & 85 and PS clause No 18.3.1 is reproduced as under :-
BOQ Item No 84 “Design, supply, installing, testing and commissioning of solar water heating system
suitable for heating water upto 60/80 degree centigrade, consisting of solar flat plate collectors (Cu-
Cu) with ultrasonic welded fins including structural supporting frames as per manufacturer's
instructions, heat exchanger, stainless steel (SS 316/IS 1730 grade) insulated hot water storage tank
of 2.0 mm thickness (minimum) of capacity suitable for supplying 100LPD of hot water to each
house/flat, suitable size PVC molded double layer make up tank with installation over MS/civil
supports, adequate capacity standby electric heating arrangement including suitable size cable from
main switch board/panel upto solar heater making connection complete, isolation valves, GI medium
grade piping of suitable size insulated with PUF/ nitrile insulation upto one bathroom of each flat/
house including one 15mm chromium plated brass bib tap, any other necessary works required to
make the system functional including complete connection as specified and directed suitable for
block of 14 Qtr (G+3)
Note: Water supply to make up water tank will be measured and paid separately.”
BOQ item no. 85 “All as per Item No 84 herein before but suitable for block of 15 Qtr (G+3)”
PS Clause 18.3.1 “Provide PVC water tank of capacity 500 ltrs shall be provided at the location
shown on drawings. The same shall be 3 layered HDPE duly marked with IS:12701 of 1989.
Contractor may provide 3 layered water tanks without any extra cost to the department. Fixing of PVC
water tank shall be as per drawing and all as directed by the Eng-in-charge. Provide ball valve (brass)
for each tank. Cost of Ball Valve shall deemed be included in the lump sum quoted . Cost of materials
and fixing shall be included in the lump sump amount quoted bt the contractor for the respective
items of Sch ‘A’ Part -1(A) and 1(B).”
In view of above, it is submitted that BOQ item No 84 & 85 is inclusive of GI medium pipe, one bib tap
upto one bathroom of each flat/house. And rate of ball valve shall be quoted in lump sum along with
PVC water tank as per PS clause No 18.3.1.
(iv) In view of above, the respondent respectfully and humbly submits that the Claim of the Claimant shall
be rejected.
(avii) CLAIM No. 1 (G): BALANCE DUE PAYMENT OF AREA DRAINAGE SCH –A PART-IX (11,74,069.85-
9,09,693.13 = 2,64,376.72)
shall be rejected out rightly. However, the respondent had approved for an amount of Rs 9,09,023,59
(total amount) with variation amount of Rs 20,330.46 (Minus).
(iii) It is submitted that this is Schedule ‘A’ Part VIII not the Part IX.
(iv) Most humbly it is submitted that the claimant during meeting with CWE on 17 Feb 2020 had claimed
that he had used 2mm thick MS sheet for pre cast concrete, and accordingly putting his claim.
However, HQ CWE vide letter dt 17 Feb 2020 had directed the ground executive to confirm the
thickness. Thus, on confirmation the thickness of same was found 1.22 mm thick (copy of photograph
attached). Therefore, it can be said that the intension of contractor is always malified and put wrong
facts to respondent.
(v) In view of above, it is most humbly submitted that this claim of claimant shall be denied and rejected
in toto.
(aviii) CLAIM No. 1 (H): BALANCE DUE PAYMENT FOR SEWAGE DISPOSAL SCH-A PART-X AMOUNTS
(691500.62-600000.00=91500.62(+))
shall be rejected out rightly.
(iii) It is submitted that this is Schedule ‘A’ Part IX not the Part X.
(iv) The AIP for variation in quantities of Part-IX was initiated for variation in quantities as per site
requirement for Rs 4, 26,810.18 and details were signed by Claimant. However due to further change
at site incl one new item, revised AIP for variation re-initiated for Rs 6,59,506.18 but claimant had not
refused to sign. Thus, DO could not finalize.
(v) Claimant had claimed the excess quantities against all the items and taking appropriate item for fixed
form work to pre-cast cover slabs using 2mm PBI sheet instead of removable form work. In this
connection, it is stated that the quantities were taken as per executed on ground and entered in MB.
The claim of using 2mm PBI sheet was also changed to 1.25mm thick PBI sheet after ground
verification ( copy attached at Exhibits ___).The Claimant had claimed to pay the PBI sheet in Kg
under SSR Part-II Srl Item No. 10004 (i.e. for handrail etc) in lieu of Srl Item No. 10029. Since, the
item of MS/PBI sheet was used as form work of pre-cast cement cover, the payment shall be made in
respective items of sheet. Thus, the appropriate item under which this can be paid is SSR-________.
It is also submitted that the pre-cast cover was constructed by welding the reinforcement of cover
with sheet, so the rate of formwork shall be deleted from the item.
(vi) The payment of Rs 6,00,000.00 was made to Claimant vide ___ RAR dt ________.
(vii) In view of above, the respondent respectfully and humbly submits that the Claim of the Claimant shall
be rejected and award the amount as per DO prepare by the respondent.
(aix) CLAIM No. 1 (K): PAYMENT OF DO FOR PROVN OF PUMP ROOM FOR BORE WELL IN CA
AGAINST SCH ‘A’ PART-1A (BUILDING AND STRUCTURE) AMOUNT RS 279628.00(+)
(i) The The respondent denies and disputes the contents thereof save and except
what are matters of record.
(ii) As explained in Para 2F(g) here-in-above. Briefly the details of provn of pump house are submitted.
(iii) During execution, the work was to be executed as per brief specification given at Para 2F(g)(__).
However, the Claimant contractor without any written order had changed the specification during
execution with specification mentioned at Para 2F(g)(___). Thus, considering the work technically
acceptable and as per Condition 46 of IAFW-2249, respondent re-initiated the case of approval as
per executed work on ground.
(iv) The Claimant had signed the DO with remarks ““signed under protest “DO of grit wash
is not priced correctly (item of grit wash)”. However, the respondent consider
the rate of grit wash plaster as per order in ORs block.
(v) The Payment of Rs __________ vide __ RAR dt _________ for the executed work was made to
contractor.
(vi) In is further submitted that due to confusion generated by claimant on the issue of grit finish wash
plaster, the revised DO could not be finalized. The respondent took every measure to settle the
dispute, but unruly non-cooperative behavior of Claimant become one of major hindrance in settleing
the dispute. Thus, the Claimant is soley responsible for the delay.
(vii) In view of above and as explained in Para 2F(g), the respondent respectfully and humbly submits that
the Claim of the Claimant shall be rejected and award the amount as per DO prepare by the
respondent.
b. CLAIM NO.2 : DAMAGE DUE TO DELAY IN PAYMENT OF RAR’S AND FINAL BILL AND RESTRICTING THE
AMOUNT OF RAR @18%P.A.
(i) The respondent denies and disputes the contents thereof save and except what are
matters of record.
(ii) It is submitted that contractor has stated that he quoted reduced rates taking into account
the MES precedence as per which RARs are paid very promptly. This clearly shows that
contractor has not considered Condition 64 of IAFW 2249 forming part of contract.
Condition 64 clearly specifies regular advance on account payment during the execution
of work. Therefore, the RAR amount is an advance payment to the contractor which is
adjusted in the final bill after completion of the work. Since the RAR payment is advance
payment and is not debt therefore no interest can be paid on the delay in the payment of
RAR in this regard attention is invited to Supreme Court judgement in the case of State of
Manipur vs Shangreihan Muivah dated 27 Mar 2001.
(iii) It is further submitted that Claimant had considered that payment shall be made as soon
as they submits the RAR, which is fundamentally not correct. Since, the contract
agreement had not mentioned of periodicity of payment. The payment shall be made after
cross verification by ground executives at site of works. The Condition 64 interalia specify
the periodicity of submission of RAR. Since the period of payment of RAR has not been
agreed in any of the conditions of the contract , there cannot be any delay in payment of
RAR and no claim of interest on such alleged delay is tenable.
(iv) The contractor has claimed interest @18% per annum which is exorbitantly higher as
compared to prevailing 6.5% interest rate on FDs by the banks.
(v) In view of above, these claims of the contractor are not tenable and Ld Sole Arbitrator is
requested to reject this Claim and award NIL amount against these claims.
c. CLAIM NO. 3 :- INFRUCTUOUS EXPENDITURES INCURRED IN THE PROLONGED PERIOD OF CONTRACT.
FINANCIAL EFFECT : 35,00,000/-
matters of record.
ii. The contention of claimant is fictitious, false and not agreed to please. UOI granted extension of time to
claimant on the grounds on the specific written requests made by clamant as per agreed conditions of contract.
The deviation orders for prolongations of contract period indicating ‘NIL’ financial effect were signed by the
claimant without any reservation which tantamount to his unequivocal acceptance thereto. As per condition
11(C) of GCC (IAFW-2249) also, no claims are admissible on account of extension of time granted under
condition 11 of GCC (IAFW-2249). In this connection, please refer Exhibit ___ to ___. Hence after now claim
raised by the claimant at this stage is completely afterthought and not tenable as per agreed condition of the
contract.
iii. The respondent relies on Hon’ble Delhi High Court Judgement in the matter of the
Executive Engineer (C) Dr-Vi Vs M/s Bhasin associates dated on 29 Mar 2019 in which it
was held that no evidence has been brought on record by the contractor except mentioning
a mere statement. The judgement also mentioned that going by the judgement of this court
in All India Radio (supra), the claim is not sustainable without evidence of losses is
produced.
iv. In this context, Hon’ble Arbitrator kind attention is also invited to the judgment pronounced by Hon’ble Supreme
Court in the matter of Ramnath International Construction Pvt Ltd. Vs UOI and ANR 2006 (4) ARB R 385 (SC)
decided on 11th Dec 2006 (Civil appeal Nos 3167- 3168 of 2005) :-
Hon’ble Supreme Court in the subject judgments has held that:
“After enumerating certain delays, sub-clause (vii) of Clause (A) specifically mentions delay on
account of any other cause beyond the control of the contractor. The causes for delays specified in
Clause (A), thus encompass all delays over which the contractor has no control. This will necessarily
include any delay attributable to the employer or any delay for which both the employer and the
contractor are responsible. The contract thus, provides that if there is any delay, attributable either to
the contractor or the employer or to both, and the contractor seeks and obtains extension of time for
execution on that account, he will not be entitled to claim compensation of any nature, on the ground
of such delay, in addition to the extension of time obtained by him.”
“Clause 11 (C) of the General Conditions of Contract is a clear bar to any claim for compensation for
delays, in respect of which extensions have been sought and obtained. Clause 11 (C) amounts to a
specific consent by the contractor to accept extension of time alone in satisfaction of his claim for
delay and not claim by compensation. In view of the clear bar against award of damages on account
of delay, the arbitrator clearly exceeded his jurisdiction, in awarding damages, ignoring Clause 11
(C).”
v. Further, Ld Sole Arbitrator attention is also invited to the Delhi High Court Judgement CS(os) No. 614A/2002
(M/s Simplex concrete piles (India) ltd vs UoI) dt 23 Feb 2010 , Hon’ble High Court points out that Contractor is
stopped from raising claim for compensation only and only if the reasons for grant of extension to contract
period fall within those listed in Condition 11(A) and (B) and not for any other reason. The Hon’ble court further
states that Provision of Condition 11(C) (after amendment it is Condition 11(D)) cannot therefore applied
across the board and details would need to examined after affording due respect to this condition 11(C).
vi. In this connection, it is stated that as explained in Para ___, the reason for grant of extension fundamentally
lies as per condition 11(A). Thus, as per condition 11(D) of IAFW-2249, the contractor claim on compensation
shall be rejected.
vii. Also, the Claimant while stating that they have suffered additional costs in payment of salary/wages to the staff
during the prolonged period and cost of machinery/T&P deployed at site during the prolonged period. However,
no such details duly signed by GE or else have been produced. Thus, it is stated that the claim is baseless and
devoid of any merit, thus liable to be rejected.
viii. In view of above, the respondent respectfully and humbly submits to Ld Sole Arbitrator that the claim of
Claimant is not based on any evidence and extension had been granted fundamentally on Condition 11(A).
Thus, the claim of Rs. (+) 35,00,000.00 is liable to be rejected and award NIL amount against this claim.
d. CLAIM NO. 4 :- AN AMOUNT OF RS 2,40,000/- TOWARDS THE UNWARRANTED EXTENSION OF BANK

GUARANTEE BOND
i. The respondent denies and disputes the contents thereof save and except what are matters
of record.
ii. The contention of claimant is false, fictitious and not agreed to please. In this connection para 6 of condition 64
of IAFW-2249 (General Conditions of Contract) forming part of contract is reproduced as under :-
“In the event of delay in preparation of final bill, the Contractor shall make arrangement with the bank for
suitable extension of the fixed deposit period.”
iii. From the above condition Claimant contractor have to make arrangement with the bank for suitable extension of
the fixed deposit period. Also from para ___ , it is quite obvious that delay in preparation and processing of final
bill has occurred due to non-cooperation of claimant , hence no claim is admissible on extension of bank
guarantee.
iv. In view of above the learned Arbitrator is requested to reject the claim of Rs. (+) 2, 40,000.00 and award nil
amount in favour of claimant.
e. CLAIM NO. 5 :- CLAIM FOR COMPENSATION FOR LEVY OF GST :-
matters of record.
ii. Claimant contentions are not completely correct as claimant had hidden the applicability of Service tax on
work Contract as on last date of receipt of tender however it is agreed that new GST law promulgated with
effect from 01st July 2017.
iii. The new tax regime had subsumed following existing central as well as state level taxes:
a. At the Central level
(i) Central Excise Duty,
(ii) Additional Excise Duty,
(iii) Service Tax,
(iv) Additional Customs Duty commonly known as Countervailing Duty, and
(v) Special Additional Duty of Customs.
b. At State level,
(i) Subsuming of State Value Added Tax/Sales Tax,
(ii) Entertainment Tax (other than the tax levied by the local bodies),
(iii) Central Sales Tax (levied by the Centre and collected by the States),
(iv) Octroi and Entry tax,
(v) Purchase Tax,
(vi) Luxury tax, and
(vii) Taxes on lottery, betting and gambling.
iv. As per 15th RAR bearing voucher no._____________ dt 07 Jun 2017, the rate of Sales Tax deduction is
5.25%. The amount of work done till that RAR was Rs 3,52,70,000.00. it is submitted that the mentioned tax
is central Sales tax only. However, the tax on materials used was also borne by the contractor while
purchasing. The rate of tax (VAT) was different for different materials used in construction industry.
v. The following agreed provisions are stipulated in the contract reproduced hereunder:
Special Condition 29 on Srl Page No. 161& 162 of Contract Agreement.
“29. Re-imbursement/Refund on variation in “Taxes Directly Related To Contract Value”:-
(a) The rates quoted by the contractor shall be deemed to be inclusive of all taxes (including Sale Tax /
VAT on materials, Sales tax / VAT on works Contracts, Turnover Tax, Labour Welfare Cess/tax etc) duties,
Royalities, Octroi & other levies payble under the respective statutues. No reimbursement/refund for
variation/in rates of taxes, duties, Royalities, Octroi & other levies, and/or imposition/abolition of any
new/existing taxes, duties, Royalties, Octroi & other levies shall be made except as provided in sub para (b)
here-in-below.
(b)(i) The taxes which are levied by Govt at certain percentage rates of Contract Sum/amount shall be
termed as “taxes directly related to Contract value” such as Sales tax / VAT on works Contracts, Turnover
Tax, Labour Welfare Cess/tax and like but excluding income Tax. The tendered rates shall be deemed to be
inclusive of all “taxes directly related to Contract value” with existing percentage rates as prevailing on last
due date for receipt of tenders. Any increase in percentage rates of “taxes directly related to Contract value”
with reference to prevailing rates on last due date for receipt of tenders shall be reimbursed to the
Contractor and any decrease in percentage rates of “taxes directly related to Contract value” with reference
to prevailing rates on last due date for receipt of tenders shall be refunded by the Contractor to the
Govt/deducted by the Govt from any payments due to the Contractor. Similarly imposition of any new “taxes
directly related to Contract value” after the last due date for receipt of tenders shall be reimbursed to the
Contractor and abolition of any “taxes directly related to Contract value” prevailing on last due date for
receipt of tenders shall be refunded by the Contractor to the Govt /deducted by the Govt from the payments
due to the Contractor.
(ii) The contractor shall, within a reasonable time of his becoming aware of variation in percentage rates
and/or imposition of any further “taxes directly related to Contract value”, give written notice thereof to the
GE stating that the same is given pursuant to this Special Condition, together with all information relating
there to which he may be in a position to supply. The Contractors shall submit the other documentary proof/
informations as the GE may require.
(iii) The Contractor shall, for the purpose of this condition keep such books of account and other
documents as are necessary and shall allow inspection of the same by a duly authorised representative of
Govt, and shall further, at the request of the GE furnish, verified in such a manner as the GE may require,
any documents so kept and such other information’s as the GE may require.”
vi. The stipulation given in special condition 29 under sub para (b)(i), states that the tendered rates shall be
deemed to be inclusive of all “taxes directly related to contract value” with existing percentage rates as
prevailing on last due date for receipt of tender. In this case last due date of receipt (bid submission end date)
of tender was on 08th Mar 2016 (Annexure R-___). In sub para (b)(i) it is also stipulated that “imposition of any
new “taxes directly related to Contract value” after the last due date for receipt of tenders shall be reimbursed
to the Contractor and abolition of any “taxes directly related to Contract value” prevailing on last due date for
receipt of tenders shall be refunded by the Contractor to the Govt /deducted by the Govt from the payments
due to the Contractor”.
vii. In this case VAT (on procurement of materials) and service tax on Work contract (40% on total amount) was
levied on bid submission end date.
viii. The stipulation given in special condition 29 under sub para (b)(ii) & (iii) , states that the The contractor shall,
within a reasonable time of his becoming aware of variation in percentage rates and/or imposition of any
further “taxes directly related to Contract value”, give written notice thereof to the GE. He shall submit the
other documentary proof/ information as the GE may require. The Contractor shall, for the purpose of this
condition keep such books of account and other documents as are necessary and shall allow inspection of
the same by a duly authorised representative of Govt.
It is pertinent to mention that claimant was required to given written notice to GE and produced the
book of account for claiming of this amount whereas contractor had not claimed this amount till completion of
work. Even now claimant has not submitted the complete details and merely applied difference of Rate
between VAT and GST (12-4 = 8%) and left out the consideration Service tax deliberately.
ix. The respondent has not denied the reimbursement of amount as per Special Condition 29 of CA as per
agreed condition of the contract, after submission of complete details. However, the Claimant had not
produced any documents, but merely stated out 8% (12-4) is not sufficient for coming to amount of
reimbursement.
x. In view of above the learned Arbitrator is requested to first direct the Claimant to produce the complete details
duly vetted by Competent CA before awarding any amount in favour of claimant.
f. CLAIM NO. 6 :- INTEREST :-

i. The attention of the Ld Arbitrator is drawn to section 31.7 (a) of Arbitration and
conciliation Act 1996, which read as under: -
“Unless otherwise agreed by the parties, where and in so far as an arbitral
award is for the payment of money, the arbitral tribunal may include in the sum
for which the award is made interest, at such rate as it deemed reasonable, on
the whole or any part of the money, for the whole or any part of the period
between the date on which the cause of action arose and the date on which the
award is made.”
ii. It is quite clear from the above provision that the decision on following point are left to the
judgment of the Ld Arbitrator based on justification/arguments presented by the parties
before the Arbitrator: -
a) Whether interest is to be awarded?
b) What is the reasonable rate?
c) What part of the amount of award?
d) What part of the period?
iii. Further section 31.7 (b) of arbitration and conciliation act provide as under -
“A sum to be paid by an arbitral award shall, unless the award otherwise
directs, carries interest at the rate of 18% per annum from the date of award to
the date of payment.”
iv. It can be seen from the above provision that the Arbitrator is expected to give his own
direction on award of Interest, obviously as considered justified and reasonable by him. It
is only when the Arbitrator omits or misses to award interest, the awarded sum carries
interest at the rate specified in the section.
v. It is thus evident from the foregoing submission that the interest cannot be awarded by the
Ld Arbitrator out rightly without any basis, but it is to be based on the reasonableness and
proper justification. It is, therefore, requested that the Ld Arbitrator may satisfy himself on
the points brought out above before taking his final judgment while publishing the award.
vi. Further provision of interest is also not covered under any condition of the CA or in law
related to contract Provision of interest act in this regard are also be perused which provide
fulfilling following conditions before entertaining any claim of interest:-
a) There must be a certain sum.
b) It must be payable by certain time by virtue of an agreement.
c) Interest must be payable way of agreement of expressed or implied. No
interest is payable under the interest act unless all these above conditions are
fulfilled.
vii. In the present case, the contractor has claimed interest @ 18% without indicating as to
whether it is simple interest or compound interest. The rate of interest claimed by the
Claimant is very high when compared with the prevailing rate of interest during that period.
viii. Notwithstanding the above submissions, it is submitted that none of the claims preferred by
the claimant is legitimate as contended by them. The claimant’s pleading in defense here-
in-before in-disputably establishes that all the claims by the claimant are frivolous,
afterthought, non-contractual and not maintainable in the eyes of law.
ix. It is further added that no amount is admissible as per terms of the contracts and the
Claimant has not unduly withheld any amount thereof. The payment of any interest is also
not covered as per the terms of the contract. Therefore, the question of award of any
interest, as claimed by the claimant, does not arise.
x. In view of above, the learned Arbitrator is requested to reject the claim of the contractor in
toto.
g. CLAIM NO 7 : COST OF ARBITRATION :-
As already brought out in the above paras by U.O.I. It is contractor who has unnecessarily dragged the U.O.I
into avoidable Arbitration for their un-contractual claims. Therefore, Learned Arbitrator is requested to reject
the claim of the claimant in toto and instead, award cost of arbitration in favour of U.O.I
Yours faithfully,
(Anant Kumar, IDSE)

CE
Encls : Exhibit R-1 to R-_____ Chief Engineer
Copy to :-
(REGD BY POST for Srl No. 1)
1. M/S Associated Construction Co - Alongwith copy of enclosures.

51/23, Rajinder Nagar
New Delhi-110060
2. HQ CWE (AF) Tughlakabad - Alongwith copy of enclosures.
3. GE (P) AF Gurgaon - Alongwith copy of enclosures.

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DRAFT

83322/ARB/TKD/ /E8 Jul 2022

ARBITRATION ON DISPUTES ARISING OUT OF AND IN RESPECT OF CA NO : CE (AF) NGP/GUR-46/2015-16 :

M/S Associated construction Co - CLAIMANTS

UNION OF INDIA - RESPONDENT

(a) CA No. : CE (AF)/NGP/GUR-46/2015-16

Phase-II: (Sample qtr of OR’s Block) before 04

Phase-III: 18 Months (Balance work except in

Phase I Phase II Phase III

The scope of work include construction of: -

(C) BRIEF HISTORY OF CASE

(D) EXTENSION OF TIME

Total Extension of Time Granted - 77 Days

Total Time of extension – 04 Months (Due to additional work required to complete

Total time extension granted - 295 Days

Total extension of time granted - 61 Days

(E) BRIEF FACTS AND CIRCUMSTANCES

(F). DELAY IN EVENTS OCCASIONED BY THE RESPONDENT.

a. DELAY IN FINALISATION OF DEVIATION ORDER OF INCREASE IN PLINTH HEIGHT AGAINST SCH

(3) While observing level sheet No 10560B/1 dated 24.04.2019 prepared

b. DELAY IN DECESIONS / APPROVAL OF SOLAR WATER HEATING SYSTEM

c. DELAY IN APPROVAL OF MATERIAL FOR PRELAMINATED PARTICLE FOR WARDROBES AND

f. INCREASE IN QUANTITIES OF INTERNAL / EXTERNAL B& R / E& M SERVICES DURING THE

g. PROVISION OF PUMP ROOM FOR THE INFRASTUCTURE OF BOREWELL

(G) QUANTIFICATION OF CLAIMS OF ENTITLEMENT.

Amount as per Final Amount as per Final Remarks

v. The details of variation in quantities as prepared by respondent are as under: -

(vii) On items wise comparison of DO following points are observed: -

d. CLAIM NO. 4 :- AN AMOUNT OF RS 2,40,000/- TOWARDS THE UNWARRANTED EXTENSION OF BANK

e. CLAIM NO. 5 :- CLAIM FOR COMPENSATION FOR LEVY OF GST :-

Special Condition 29 on Srl Page No. 161& 162 of Contract Agreement.

“29. Re-imbursement/Refund on variation in “Taxes Directly Related To Contract Value”:-

f. CLAIM NO. 6 :- INTEREST :-

g. CLAIM NO 7 : COST OF ARBITRATION :-

(Anant Kumar, IDSE)

1. M/S Associated Construction Co - Alongwith copy of enclosures.

2. HQ CWE (AF) Tughlakabad - Alongwith copy of enclosures.

3. GE (P) AF Gurgaon - Alongwith copy of enclosures.

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