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MBL Infrastructures Limited And National Highways Authority of India : Employer/Respondent : Claimant/Contractor … … … Presiding Arbitrator Arbitrator Arbitrator
In the matter of Arbitration under the provisions of Arbitration and Conciliations Act 1996 in “Short Term Improvement and Routine Maintenance work for Chilakaluripet to Vijayawada (Km. 355.00 to Km. 434.150) and Vijaywada to Eluru (Km.3.400 to Km. 81.600) Section of NH-5
INDEX S.No. DESCRIPTION 1 Statement of Defence of the Respondent incorporating amendments to the replies in respect of Claim Nos. A-1, A-5, A-6, A-7 & A-8 Filed by: RESPONDENT Through M. V. KINI & CO. Advocates & Solicitors KINI HOUSE 6/39, JANGUPRA B NEW DELHI – 110 014
PAGE No. 1-
BEFORE THE ARBITRAL TRIBUNAL OF 1. Shri K.K. Varma, Additional Director General,(CPWD), Retd. EA-290, DDA-SFS Flats Maya Enclave, New Delhi-110064 Shri. V.D. Gautam IDSE, Retd. B-44, Jalvayu Vihar, Pocket 4, Plot # 8, Greater Noida 201308 Shri. S.K. Jain Jain-Lok, Kothi Gate, Hapur- 245101 : Presiding Arbitrator
IN THE MATTER OF ARBITRATION BETWEEN:M/s. MBL Infrastructures Limited 23A, N.S. Road, 3rd Floor, Room No.14, Kolkata AND NATIONAL HIGHWAYS AUTHORITY OF INDIA, G-5 & G-6, Sector – 10, Dwarka, New Delhi.
(ARISING OUT OF AGREEMENT DATED 24TH AUGUST, 2006) In the matter of Arbitration under the provisions of Arbitration and Conciliation Act, 1996 in “Short Term Improvement and Routine Maintenance work for Chilakaluripet to Vijayawada (Km. 355.00 to Km. 434.150) and Vijayawada to Eluru (Km.3.400 to Km. 81.600) Section of NH-5
STATEMENT OF DEFENCE OF THE RESPONDENT INCORPORATING AMENDMENTS TO THE REPLIES IN RESPECT OF CLAIM NOS. A-1, A5, A-6, A-7 & A-8 MOST RESPECTFULLY SHOWETH: 1. That the contents of the SOC to the extent not specifically adverted to and replied herein shall be deemed to have been traversed in extenso and denied by the Respondent save and except those which are specifically admitted hereinafter.
That wherever applicable, the Respondent has placed copies of correspondence/documents as annexure to the reply and reserves its right to rely on the same and further reserves the right to file such other correspondence/documents as may be deemed appropriate and to make detailed submissions at an appropriate time.
That the Respondent reserves its right to add, to vary, modify or otherwise elaborate its reply, averments, contentions and submissions and to submit further documents as may be required. Further, the Respondent hereby reserves its right to lead oral as well as documentary evidence as may be required in support of its contentions. OBJECTIONS ON THE MAINTAINABILITY & ARBITRABILITY
That the Claimant has sought to make certain alleged claims before this Ld. Tribunal, which are either beyond the terms of the Contract or are clearly barred by the terms of the Contract and therefore are not maintainable or arbitrable, the details whereof are as under:
A-6 Rs. Reputation.15. 1. According to Clause 27. v) Claim No. iv) Claim No. The aforesaid claims are clearly de hors the Contract and for the same reason not maintainable or arbitrable before this Ld. A-7 Rs. 2.05.803/. That the present Contract was entered into between the Claimant and the Respondent for the purposes of “short term improvement and routine maintenance of NH-5 from Chilakaluripet to Vijayawada and Vijayawada to Eluru. 5.2006 to 29. ii) Claim No. the Engineer shall issue the Indents of the works in stages and the -4- . PRELIMINARY OBJECTIONS: 1.towards loss of profit due to reduction on account of Contract which could not be executed.2006). A-5 Rs.i) Claim No.74.788/.towards loss on account of delay in issue of letter to proceed (initial expenditure between 19.88.1.00. A-8 Rs.980/.00.towards losses on account of price rise due to delays.978/.000/. As per the terms of the agreement.07. This objection may kindly be treated to have been raised u/s 16 (2) of the Arbitration and Conciliation Act..towards loss due to prolongation of Contract period (Claim due to overheads and establishments). iii) Claim No. 1996. mental harassment etc. 18.17.94. Tribunal.08. the Claimant was required to execute the work as mentioned in the “Scope of Works”. 33. A-1 Rs.towards loss of Goodwill.
In spite of the said requirement under the Contract. the Claimant failed to give any programme to the Respondent within the stipulated period of 28 days.Claimant shall submit the program to the Engineer for its approval. 2.09. the Letter to proceed with the work was issued by the Respondent to the Claimant on 29.2006. it is clearly laid down under clause 6.1 that the maintenance programme planning shall be in two stages. After execution of the Contract dated 24. On 09. which was represented by -5- . The language of the Clause 27.08.08. along with monthly cash flow forecasts. The Contractor shall submit to the Engineer for approval a programme showing the general methods.2006. order.72 of the Statement of Claim. and it is the primary responsibility of the Contractor to submit the first stage program within 28 days of issuance of the letter of commencement by the Employer. “The Engineer shall issue the Indent of work in stages specifying the time limit for the same as and when required.3.10. a review meeting was held.2006 the Engineer.2006. and timing for all the activities in the works. It is relevant to submit that in accordance with Clause 27. arrangements.1 of Part-I of GCC read with the Implementation Manual and Maintenance Intervention Levels (Section-6). a copy of which has been furnished by the Claimant as Document C-14 at pg.1 is reproduced herein below. On 11. after the joint inspection and in consultation of the Claimant issued the First Indent to the Claimant.” Thus from the above it will be clear that the Claimant was to execute the works in accordance with the Indents issued to him by the Engineer from time to time within the time prescribed for completing the Indent.
In the said meeting it was brought to the notice of the Claimant the poor rate of execution of the work. The copy of Claimant’s letter dt. the Claimant on his own admission had taken on lease an area of land measuring 3.10. which will show that the Claimant initiated the breach of the Contract right from its inception.09.2006 are annexed hereto and marked as Exhibit. it was pointed out that the Claimant had again failed to establish the laboratory.2006 and 09.R-1 & R-2.2007 whereas the work under the Contract had commenced on 12.2006 and the Contract period was to end on 11. after signing of the same. the Claimant was bound to establish a fully equipped laboratory within a period of thirty days. the -6- .09.09. again in a Review meeting on 09. 3.the representatives of both the parties wherein it was pointed out to the Claimant that the scientific laboratory to carry out various tests had still not been established by the Claimant even though under Clause 53(i) read with Clause 15 (a) of the Contract.2006. Claimant has to mobilize required machinery. Thereafter.11.02.01. Copies of the minutes of the review meetings dated 09. The claim of the Claimant that they had mobilized the heavy machinery and other staff and labour for commencement right from the beginning of June 2006 is totally bereft of any truth in as much as the Claimant has miserably failed to place any document in support thereof. Contrary to this.11. That as a matter of fact the Claimant had failed to provide even the vehicles for routine maintenance and site management till as late as 18.2007. in as much as the Claimant had achieved only 5% against the required 67%. As it transpired. As per conditions of the Agreement.2006 Exhibit R-33.2007 is appended hereto and marked as Exhibit R-41.84 acres only on 19. 05.
2006 to the Claimant emphasized the need and the urgent requirement of the Hot Mix plant at the site.11.11. Copies of the minutes of the review meetings dt.2006. in gross violation of the requirement under Clause 6.2006.2006.2006 and 18. That as already submitted no equipment/machinery whatsoever was available at site even after signing of the Contract to attend even ordinary / routine maintenance. That That on 22.39. It is pertinent to submit that the Claimant.2006 the Engineer placed the Second Indent on the Claimant.2006 is annexed hereto and marked as Exhibit R18.104.22.1686. 16. 5. A bare perusal of the minutes of said meeting would reveal that the Claimant was unable even to start the work in terms of the provisions of the agreement. Copies of some of the MOM’s and notices are appended hereto and marked as Exhibit -R-1 to R-6 as well as R-34 & R-35.11.12.R-5 & R-6.Claimant failed to do so in spite of a number of notices by the Engineer. 08.2006 are annexed hereto and marked as Exhibit. The failure of the Claimant in this regard and on various other issues was brought to the Claimant’s notice by the Consultant from time to time through his letters dated 07. -7- .12.11. 4. failed to install the Hot Mix plant despite notice in this behalf during the review meeting on 14. Thereafter. a copy of whose minutes is appended hereto as Exhibit R-3.2006 and 09.11.2006.11. 29.3 of the Contract.12. the Respondent expressed concern over the non execution of the balance work in the First Indent. 29.10.2006 and 09. A copy of the letter dt.7. copies whereof are appended hereto and marked as Exhibit R -36 to R. 04. again during the review meetings held on. The Engineer again in letter dated 8.
2006. the Engineer further pointed out to the Claimant about his non-compliance with the requirement of Work Manual under Clause 6.3.6. Since the work program was only in the form of draft. That it is submitted that the Claimant had continued with his lackadaisical approach in executing the work and submitted only a draft of the work program.01. pointed out to the Claimant his non.2006 and the same was received by the Engineer only on 30th December. The Engineer in his letter dt. the Engineer made certain remarks vide letter dated 4th December. 2006.12. that too belatedly after a delay of 70 days on 22. Thereafter. which was again not complied with by the Claimant.11. In the said letter. 2006 annexed hereto as Exhibit R-7 and gave a further reminder on 20th December. As per the above clause. annexed hereto as Exhibit R-8 regarding yearly maintenance program. the Claimant resubmitted a back-dated work program on 11. which is extracted herein below.compliance of submission of Work Programme to the Engineer for approval as per the Contract. “A comprehensive documentation shall be prepared separately by Engineer and Contractor mentioning their assessment of various types of defects in each km of road”. -8- . the Claimant is required to prepare a comprehensive document mentioning the assessment of various types of defects in each KM of road. 06.1(b)-(iii) under section 6 of the Contract. 2006 (at the end of the first quarter).2007 (Document C-34 of the Statement Of Claim).
12. Copies of some of the -9- . despite repeated notices and reminders of the Engineer/ Respondent on numerous occasions.2006 (Exhibit R-9) the Respondent pointed out to the Claimant that despite repeated reminders through various letters and discussions in the monthly review meetings. 04. the Claimant exhibited lethargy in executing the work. The Respondent also sought the explanation from the Claimant as to why LD should not be levied. 1 and the value of the works executed by the Claimant was a dismal 9. Respondent vide its letter dt.12. Again vide letter dt. The Respondent through its letters from time to time had consistently apprised the Claimant regarding the complaints and emphasized the need for speed and expedition in the execution of the Work in a timely manner. I/2006. In the said letter. 22.91% as per the approved Work Indent No. 18. the Respondent also listed the failures of the Claimant in brief in executing various works. However. the said requests and entreaties fell on deaf ears in as much as there was no discernible improvement in the work performance of the Claimant.2006. The delay and dithering in the execution of the work led to numerous complaints from the Public regarding the deteriorating condition of the road owing to lack of maintenance and repairs.2006 (Document C36 in the Statement Of Claim) requested the Claimant to expedite the work mentioned therein. That though the Claimant sought to furnish reasons for their various failures in a letter dt.12. 8.7. That right from the date of commencement of work. the same were absolutely imaginary and unconvincing lame excuses.79% against the required 87. the Claimant had failed to even complete the balance work under Indent No.
2007. submission of Monthly progress reports etc. The gross negligence on the part of the Claimant will be eloquent from the fact that the lawn in a traffic island around the Rotary at Km.04. The said incident of fire is a pointer to the gross neglect on the part of the Claimant in watering. A copy of the minutes of the review meeting dt. the Claimant even failed to redevelop the lawn till 19. 9.2.2007. 19. deployment of qualified nursing staff. the Claimant sought to disown their responsibility and resort to Arbitration proceedings..2007 Exhibit R-12 the Respondent informed the Claimant about non-compliance of various provisions of the Contract Viz.1.04. 10. The callous attitude of the Claimant would be evident from the fact that instead of taking remedial steps as requested by the Respondent time and again through number of letters and reminders.complaints received from the Public are annexed hereto and marked as Exhibit R-10.2007 is annexed hereto and marked as Exhibit R-11. trimming of the said area as per Contract in as much as the dry plantation became susceptible to fire. 3.460 on Visakhapatnam side caught fire in the month of January 2007 despite the responsibility of the Claimant under the Contract to conserve all trees. which fact was brought to the notice of the Claimant in a review meeting held on 19.10 - . but also miserably failed to fulfill the undertakings given by them in the . As if this was not enough. deployment of Ambulances. removal of hoardings. manuring.04.01. In the review meeting held on 09. Not only did the Claimant fail to comply with the provisions of the Contract. shrubs and similar plantation within the right of the way as per provisions of clause 4.
providing of mobile maintenance unit etc. A copy of the minutes of the meeting dated 08.02. the Claimant was required to establish the fully operational laboratory within a period of 30 days. That as per the provisions of the Contract. the due date of which was 28. Apart from the non-completion of the First Indent. Again during the review meeting held on 9.2007 Exhibit R-16 it was observed by the Respondent that the Claimant was still to start execution of work under Indent No. In the said meeting the Claimant was informed that the overall progress of the work was only 1.02.11 - . A bare perusal of the various Minutes of the review Meetings will reveal that the Claimant had even failed to complete the First Indent in spite of the assurance that the same will be completed by 20.03.2007.2007. Copies of various letters on this subject from the Respondent to the Claimant are annexed hereto and marked as Exhibit -R.02. On 08. 11. 3. From the above it will be evident that there was overall and comprehensive failure on the part of the Claimant in executing any . However.2007. The Claimant was extremely lackadaisical in its approach in executing the work. the Claimant did not even commence the work against Indent No.03.88% against the targeted 35% until 31.01.2007. the Ambulance services were operated without the qualified staff.13 & R-14.2007 a management meeting was held in the office of the Project Director. Furthermore.2007 is annexed hereto and marked as Exhibit R-15.review meetings from time to time such as establishment of laboratory. the due date in respect of which had already expired on 28. till the date of termination of the Contract.02. the Claimant failed to establish the site laboratory. 12.3. despite several letters from the Respondent.
13. the progress of work still remained dismal.12 - . Notwithstanding this. the Claimant brought Hot Mix plant and Milling machinery to the site. in the month of June when the monsoon was already active. The Claimant further made a request not to recover Liquidated Damages in the future bills citing cash-flow problems and further undertook to furnish an unconditional Bank Guarantee in lieu of Liquidated Damages until finalization of Extension of Time as well as the quantum of Liquidated Damages to be decided by the Respondent. The Claimant further requested the Respondent to reduce the value of the work under the contract.24th May 2007 (Exhibit R-17) the Respondent conveyed the same to the Claimant. However. Thereafter.work as per the terms of the Contract and the untenable claims raised in the Statement of Claim are totally false and frivolous. In the said meeting the Claimant proposed non execution of certain BOQ items in view of a proposal for 6-laninig of the whole stretch of road between Chilakaluripet to Gundugolanu. 14.2007 at NHAI Headquarters. That a meeting was held on 29. by a letter dt. the Claimant brazenly breached all such promises and undertakings. no decisions were taken in respect of the Claimant’s proposals in the said meeting and no promise was held out to the Claimant regarding any reduction in the value of works or items except the subject of the bank guarantees to be provided by the Claimant and extension of .08. thus leaving no options to the Respondent except to levy Liquidated Damages on the Claimant as per terms of the Contract and accordingly. That despite repeated promises to execute the work in terms of the Contract given during the various review meetings and in response to the numerous letters from the Respondent.
09.65/. Having failed to achieve the required progress in the work as scheduled. Variations within the scope of the Works he considers necessary or advisable during the progress of the works.69% vis-à-vis the requirement of 100% as on 11.44. A copy of the Minutes of the Meeting dated 29. which is self explanatory is appended hereto and marked as Exhibit R-18. The Claimant.1 of Contract as a variation proposal.117/-. the revised work programme submitted by the Claimant is of no relevance contractually and the value of the work to be executed under the Contract remained as Rs.22.214.171.124.08. “the Engineer shall. .2007. Hence. having regard to the scope of the Works and the sanctioned estimated cost. was not approved by the Headquarters of the Respondent who returned the same with the remark that the same shall have to be submitted as per Clause 36. in writing.2007.BG’s already provided. 15.only.09. in a bid to cover up his failures/ lapses unilaterally decided not to execute certain BOQ items on the excuse that the whole stretch of road between Chilakaluripet to Gundugolanu was proposed for six laning.1 of Contract. It is a matter of record that no instructions whatsoever were issued by the Respondent or the Engineer to stop or suspend any work at any point of time. the Claimant submitted a revised work programme through a letter dated 10. have power to order only after approval from NHAI / as per NHAI guidelines. That the Respondent’s site inspection in the month of September revealed that the progress of work achieved by the Claimant till then was a dismal 12.2007 unilaterally indicating a reduction in the scope of work under the Contract to Rs.” The above revised work programme.13 - . As per Clause 36.38.10.
2. the Respondent accorded approval for the EOT through a letter dated 28. the Claimant failed to appoint qualified nursing staff. vegetation and were unable to provide services of route petrol vehicles and the ambulances were being operated without the qualified staff.16.2007.31.12. The time for completion of the work was extended till 31.2007.10. the value of work executed till then was much below 30% of the envisaged . a total of six (6) numbers of Indents were issued by the Engineer from time to time. In all.12.2.9 and 3.65/.6. the rate of execution of the works by the Claimant continued to remain tardy. 17.44. It is a matter of record that despite numerous letters from the Respondent. A copy of the letter dt. in support whereof copies of the relevant Non Performance Reports are annexed hereto and marked as Exhibit -R-20 to R31.10.70/against the agreement value of Rs. The Claimant even resorted to false claims by showing executed quantities of work in excess of those actually executed under BOQ item No.50.2007 is annexed hereto and marked as Exhibit -R 126.96.36.199.14 - . 10. 3. The Claimant failed to maintain and water the shrubs.28. The value of work executed by the Claimant was only Rs.2007. That on the request of the Claimant. However.359. That despite grant of the EOT. of which the Claimant failed to execute even the first one fully. the Respondent made it clear in the same letter that the LD already levied would continue to be recovered.which will establish the comprehensive failure of the Claimant in all respects and breach of provisions of the contract on their part. 18. The progress was abysmally low and even after expiry of 50% of the completion period. 3. That the Respondent reviewed the execution of the works by the Claimant till 31.141.
53. That in view of the fundamental breach of Contract committed by the Claimant the Respondent was within its rights under the Contract to terminate the same under Clause 53.1 of the General Condition of Contract read along with Item 15 (a) of the Contract Data.2: Fundamental breaches of Contract include. Furthermore. A copy of the notice dated 07.2(h) are reproduced herein below. Clauses 53. “53.2(h) and 15(c) of Contract Data of General Conditions of Contract which amounted to fundamental breach of the Contract as per Clause No. That it is germane to state that the Engineer gave a notice vide letter dated 07.02.2 and Clause 53.2007 wherein the Engineer had recorded that the Contractor had failed to perform the Contract as per Clause No. In view of the said circumstances.2.15 - . the following: “53.2 (h): If the contractor has not completed atleast 30% of the value of work required to be completed after half of the completion period has elapsed” 19.2(h) of the General Condition of Contract.53.2007 is enclosed as Exhibit-R-54 20. the Claimant completely failed to setup a field laboratory with prescribed instruments in accordance with Clause 53.02.2(i) of General Conditions of the Contract and demanded an explanation to show cause as to why the Contract cannot be terminated for his default. the Respondent . but shall not be limited to.progress. bringing the case squarely within the provisions of Clause 53. the Claimant failed to complete even 30% of the total value of work even after grant of EOT up to 31. there by amounting to fundamental breach of Contract under Clause 53. In the present case.2007.12.
2007 is annexed hereto and marked as Exhibit R-32.1 of the Contract.16 - . equipment. if any by way of counter claims against the Claimant at an appropriate time before this Ld.12. plant. and Respondent shall therefore be within its rights to recover the same from the Claimant from the amounts. 22. Tribunal. A copy of notice of termination dated 31. the Claimant illegally removed all the plant and machinery from the site and therefore the security available to the Respondent under the terms of the Contract against breach of the Contract by the Claimant was illegally appropriated by the Claimant and the Claimant further failed to renew the performance bank guarantees also in accordance with the Contract subjecting the Respondent to avoidable costs and expenses. The Respondent is entitled to recover all the losses suffered by him from the Claimant / Contractor along with the pendente lite and .1: All materials on the site. if the Contract is terminated.was constrained to serve the notice of termination dated 31. 21. “55. if any due and payable to the Claimant and reserves its rights to claim excess. That it is submitted that the Contractor is not entitled to any award or any interest or any cause including the cost of arbitration. temporary work and works shall be deemed to be the property of the Employer for use for completing balance work if the contract is terminated because of the contractor defaults” Despite the above provision. That as per clause 55.12.2007 to the Claimant. all property at the site shall be vested with the Employer as extracted herein below.
5. PARA WISE REPLY ON MERITS 1.17 - . if applicable as per provisions of clause 25. only to the extent that the Claimant had furnished performance security in the form of bank guarantee within 10 days. The contentions that the road was badly maintained by the Respondent in the mean time is also totally unsubstantiated and false in as . 1996 before this Ld. The tender conditions under ITB nowhere stipulate any time limit for issue of letter of acceptance. on account of which the Respondent has already moved an application u/s 17 of the Arbitration and Conciliation Act. It is specifically denied that there was any unreasonable delay in the issue of the letter of acceptance as contended or at all.future interest and the cost of arbitration proceedings and such relevant costs as may be deemed fit by this Ld.3 (e) of the Contract. It is pertinent to submit here that the said performance securities furnished by the Claimant are meant to be kept valid till the end of the defect liability period and/or till conclusion of any arbitral proceedings. are matters of record. 6. Tribunal for appropriate reliefs as prayed therein. That the contents of Para 6 of the Statement of Claim are disputed and denied. the Claimant has allowed the said performance securities given by way of Bank Guarantees to lapse and has failed and neglected to renew the same beyond the defect liability period stipulated in the Contract. That the contents of Para 5 of the Statement of Claim. As it transpired. Tribunal.4 That the contents of Para 1-4 of the Statement of Claim are matters of record and need no reply.
That the contents of Para 7 of the Statement of Claim are matter of record and needs no reply.10. This step was also followed in the instant case and only after receipt of such confirmation from the claimant’s bankers the present contract was signed between the parties.2006. It is pertinent to submit that the complaints were received by the Respondent regarding road condition from the road users only after arrival of the Claimant at site on 03. Only after satisfying itself with regard to the genuineness of such securities.18 - .much as the claimant even at the time of taking over the road after the contract was finalized never recorded anything in writing with respect to the alleged bad quality of the road which is being raked up now solely with the intention to make illegal gains. The details of other contracts executed by the Claimant and referred to are of relevance to . That the contents of Para 8 of the Statement of Claim are irrelevant and immaterial and therefore disputed and denied. it is customary for the Respondent to seek the confirmation from the bankers who have provided the bank guarantees towards performance securities to ascertain the veracity of the bank guarantees provided by the contractors. Copies of the documents are appended hereto and marked as Exhibit R-10. 8. 7. The allegations contained herein are totally unsubstantiated in as much as the Claimant has not placed on record any document to show that this issue was ever raised by the Claimant at the relevant point of time. It is further submitted that signing the formal Contract was not a mere ritual as contended by the Claimant in as much as before signing of any such contract. the contract is signed by the Respondent with the concerned contractors.
84 acres only on 19.09. the same was solely at the discretion of the bidder and it is a matter of record that the Claimant willingly extended the validity of his bid for a period of more than 3 months.establish any standard for the time limit for execution of the contract reckoned from the date of the letter of acceptance.2006 Exhibit R-33.09. The claim of the Claimant that they had mobilized the heavy machinery and other staff and labour for commencement right from the beginning of June 2006 is totally bereft of any truth in as much as the Claimant has miserably failed to place any document in support thereof. It may be added here that the said contracts referred to by the Claimant were entered into for the purpose of maintenance wherein the earlier contracts given to other contracts had already expired and therefore there was urgency and priority for executing the further contracts immediately after expiry of the earlier contracts. the bids invited for the subject work or to be kept valid for a period of 90 days from the date of submission as per Para 15 of the Tender Conditions and for any further extentions of validity beyond the said period. As a matter of fact the Claimant had failed to provide even the vehicles for routine maintenance and site management till as late as 18. Contrary to this. The stretch under this Contract was all along being maintained by the Respondent departmentally/ piecemeal contracts and as such there was no urgency and priority to finalize the instant Contract. 9 & 10 That the contents of Para 9 of the Statement of Claim are denied and disputed.2007. the Claimant on his own admission had taken on lease an area of land measuring 3.2006 and the Contract period was to end on 11.2007 whereas the work under the Contract had commenced on 12. .09.01. It is also a pertinent to submit that as per terms of the ITB.19 - .
2006.2006.11.2007 is appended hereto and marked as Exhibit R-41. As it transpired. the Claimant can not hold the Respondent responsible for any action or inaction prior to the date of the Contract. 11-12. the same claims are totally divide up any proof whatsoever regardless of the fact that even if the same were true. the Claimant failed to do so in spite of a number of notices by the Engineer. With regard to the empty claims of the Claimant that they had provisioned the machinery and equipment for executing the work even prior to the date of the Contract. 13. As per conditions of the Agreement.2006. It is also a matter of record that the Contract was executed between the parties on 24. That the contents of Para 11&12 of the Statement of Claim are disputed and denied as false and concocted.2006 and 18.The copy of Claimant’s letter dt.12. As already submitted no equipment/machinery whatsoever was available at site even after signing of the Contract to attend even ordinary / routine maintenance. Claimant has to mobilize required machinery.08.11. copies whereof are appended hereto and marked as Exhibit R -36 to R. The content of Para 13 of the Statement of Claim only to the extent they are part of the record are admitted.02. 16.2006 and the letter to proceed with a work was also issued on the same date. 04.20 - . The failure of the Claimant in this regard and on various other issues was brought to the Claimant’s notice by the Consultant from time to time through his letters dated 07.12.39. It is a matter of record that the Claimant addressed the letter dated 2006. rest of the contentions . 05. after signing of the same. Copies of some of the MOM’s and notices are appended hereto and marked as Exhibit -R-1 to R-6 as well as R-34 & R-35.
15. In as much as the Contract was signed on 28. the monsoon was already coming to an end by that date and the dry season was to start by October. where it is very clearly specified and it is the primary responsibility of the . 14. the maintenance program planning shall be in two stages.08.1 of Part-I of GCC and Section-6 implementation manual and maintenance intervention levels under clause 6..2006. With respect to Para 15 of the Statement of Claim it is submitted that as per the agreement entered into between the parties.which are surmises of the Claimant are disputed and denied. Moreover the actual rainfall data as obtained from the Meteorological Department would substantiate the fact that most of the month of September 2006 was without rainfall and there was ample scope for the Claimant to carry out the work. It is further submitted that the Respondent is not answerable to any actions taken by the Claimant prior to the execution of the Contract. The copy of rainfall data as obtained from Meteorological Department is annexed as Exhibit R-40. With respect to Para 14 of the Statement of Claim it is submitted that the actual monsoon Seasons in the area of works starts from June to September and dry season will start from the October. It is also a matter of record that the first indent of items to be completed by Claimant related to simple maintenance of the stretch and had no nexus or connection with a monsoon and therefore.1.3. C10 & C11 are matters of record and have no nexus or connection with the allegations contained therein. it is denied that the Claimant could not commence the works due to the Monsoon season. Clause 27. The Exhibits of Claimant i.e.21 - .
09. 17-18.22 - . That with respect to the contents of Paras 17 & 18. However. the same are disputed and denied for the reasons that they have no nexus or connection with the work undertaken by the Claimant under the Contract. That the contents of Para 19 of the Statement of Claim are disputed and denied.2006 appended hereto as Exhibit R-42 16. 15. Further. Further it is submitted that the first indent was finalized by the Engineer after a joint inspection of the site by the contractor and consultant. 19. any plea of the Claimant disputing the program is mischievous and mala fide. the Claimant admittedly failed to provide any program to the Respondent. In as much as the actions on the part of the Respondent referred to in the said paragraphs are concerned. After the joint inspection the Engineer had even requested the contractor for his comments and suggestions as substantiated by the copy of the Engineer letter dt. That the contents of Para 16 of the Statement of Claim are totally devoid of any substance and hence disputed and denied.Contractor to submit the first stage program within 28 days of issuance of the letter of commencement by the Respondent. it is submitted that the Respondent has already explained the failure of the Claimant and the other commissions and omissions on the part of the Claimant in the . they were no way connected with the work performance under the Contract and the Respondent was totally at liberty to take whatever action with respect under the Contract beyond the Contract period and for the same reasons the contents thereof deserve to be dismissed summarily. therefore.
Preliminary Submissions, which are not repeated here for the sake of brevity. As it transpired, the Claimant himself submitted the revised the work programme and requested for deletion of certain works from the Claimant’s scope on the plea that the same are not required due to the proposed 6-lanning of the stretch. The said request of the Claimant was forwarded by the Engineer to the Project Director of the Respondent, who in turn had forwarded the same to NHAI Headquarters, New Delhi for necessary approval as laid down in the Contract under Clause 36.1 of the Contract. In furtherance of the said request vide Exhibit R-48, the Claimant held out an undertaking that he will complete the balance work as per his revised work programme for a value of Rs.19,43,90,225.2 by 31.12.2007, which was forwarded by the then Project Director to NHAI Headquarters. As it transpired, the Claimant miserably failed to execute the work even to the promised reduced value as undertaken by them. Even otherwise, the said proposal of the Claimant (referred Exhibit R-48) was rejected by NHAI headquarters which clearly pointed out that any variations to the work under the Contract can be considered only after completion of the work under the Contract as enjoined therein and there was no scope to accede to the request of the Claimant. As such request for reduction of the Contract value to Rs. 19,43,90,225.2 did not have the approval of NHAI as enjoined by Clause 36.1 referred to above and the Engineer did not have any authority whatsoever to approve the same and the Claimant’s reliance thereon is contractually invalid. 20. That the contents of Para 20 of the Statement of Claim are baseless and preposterous and therefore strongly disputed and denied. It is submitted at the cost of prolixity that the stand of the
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NHAI headquarters had been consistent right from the beginning that in the scheme of the Contract and under the circumstances at that point of time, there was no question of accepting any revised work programme from the Claimant as sought to be made out by the Claimant. It was emphasized by the NHAI headquarters that the Claimant was bound to complete the work under the different indents and upon completion thereof, make a request to the Engineer/Respondent for extension of time, which may be granted with or without levy of Liquidated Damages as the case may be. In view of the aforesaid consistent stand of the Respondent, there was no need for submission of any revised work programme by the Claimant or its approval by the Respondent. Thus the alleged delay complained of by the Claimant on the part of the Respondent is without any basis whatsoever. Respondent reserves its rights to make further detailed submissions at an appropriate time in rebuttal of the contents of Para 20. It is further submitted that the Claimant’s letter dt. ______ (Exhibit C-58) that the work could be completed only to the extent stated therein itself is an admission on their part to the Claimant’s inefficiency to perform the work in accordance with the terms of the Contract, their bald denials notwithstanding. In as much as the said failure of the Claimant qualified for termination of the Contract by the Respondent, the Respondent was constrained to do so vide its letter dt. 31.12.2007 (Exhibit R-32). The inefficiency of the Claimant is compounded by the fact that all the activities stated in the Claimant’s letter Dt. 22.12.2007 (Exhibit C-58) are very simple and minor maintenance works which can be done by even a petty contractor through simple planning. The very fact the Claimant was
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unable to do so deservedly called for termination of their services which was done by the Respondent. 21. That the contents of Para 21 of the Statement of Claim are disputed and denied. As already stated, the failure on the part of the Claimant to execute the work in accordance of the terms of the Contract amounted to Fundamental Breach of the terms thereof and therefore the respondent rightly terminated the Contract on 31.12.2007. As admitted by the Claimant in C-60, the only dispute which remained to be settled between the Claimant and the Respondent as on 29.12.2007 was limited to adjustment of payment for variations in the actual percentage of bitumen in terms of Clause 507.9 & 509.9 of MORT & H specifications. This tantamounts to show that the claims as made by the Claimant under the SOC under reply are false, concocted and imaginary. The said claims, though are admissible as per terms of the contract have been kept in abeyance in as much as the Claimant invoked arbitration even before settlement of the same. 22. That the contents of Para 22 of the statement of claim are admitted only to the extent they are matters of record and anything which is not part of the record is disputed and denied. It is a matter of record that the Claimant failed to submit any inventory of items executed by them or any “as built” drawings as mandated by clause 52.1 of the Contract pursuant to termination of the Contract. In the absence thereof, the Engineer was constrained to measure the work and determine the inventory and made recoveries from the claimant’s dues accordingly, which are final and binding on the Claimant. With regard to the contentions of the Claimant that the termination notice dated 31.12.2007 is illegal, null and void, it is
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Tribunal.26 - . which dealt with the conditions under which the Contract can be terminated. Not only the Claimant failed to complete the work as stipulated but also failed to take any cognizance of the said warning and even failed to address the said subject in any of his letters subsequent thereto. the same will invite the consequences under Clause 53 of the Contract. The failure of the Claimant to raise any dispute in respect thereof shall tantamount to a waiver and the Claimant is estopped from raising any incostinent dispute pertaining thereto before this Ld.2007 (Exhibit R-55) from the Engineer to the Claimant is explicit enough to forewarn the Claimant that if the Claimant claimed to complete the work by 31. The termination of the Contract was accordingly resorted to by the Respondent and it is also a matter of record that the Claimant did not seek to challenge the said action before the Engineer at any point of time thereafter. As already stated if the Claimant wanted to challenge .12. The Contract does not make any stipulations as to the timing of the termination and therefore the Contractor’s contention to the contrary are de hors the Contract and inadmissible. which he failed to do.12. The contents of notice dated 11. 23-25. The Engineer’s notice dated 11.2007. That the contents of Para 23-25 of the statement of claim save and except those which are already matters of record are disputed and denied.submitted that under Clause 53 which has been quoted by the Claimant. the Employer is within his rights to terminate the Contract if the Contractor causes a Fundamental Breach of the Contract.2007 (Exhibit R-55) was itself a prior warning to the Claimant of the impending termination. The Claimant was also given an opportunity by the said notice to improve his performance.12.
2008 to Engineer and the Engineer. even while the said bill was under scrutiny. in turn submitted the same to Respondent on 29. which subject matter.the said termination. It is a matter of record that by a letter dated 03. the Claimant submitted the bill on 13. the Claimant had all the opportunities to raise the said objections before the Engineer soon after the termination which the Claimant failed to do. The said letter even otherwise can not be taken cognizance of in as much as the same was not signed by an authorized signatory as enjoined by the Contract.3 of the Contract.03.2008 (Exhibit C-67) after a lapse of 2 months. the Claimant initiated proceedings under section 9 of the arbitration and Conciliation Act. That the contents of Para 26 of the Statement of Claim are disputed and denied.27 - . it ought to have been addressed to the Engineer. As already stated the said failure to raise a dispute in respect thereof amounts to a waiver and the Claimant is estopped from raising any dispute with respect thereto. the present alleged dispute sought to be raised by the Claimant is clearly not maintainable. 26. by virtue of the language of the said Clause is entirely within the domain of the Engineer and it is a matter of record that the Claimant did not care to raise any dispute in respect thereof before the Engineer at the relevant point of time. 1996 before the Hon’ble . After termination of the Contract. It is the scheme of the Contract under Clause 53 that the Contract can be terminated for Fundamental Breaches on the part of the Claimant.02. In as much as a dispute.2008 Exhibit R-51. the Claimant elected to call the said termination in question address to the Project Director of the Respondent whereas in accordance with the Contract. duly raised under the Contract is amenable for arbitration under the terms of Clause 25.02. However.
) a) Loss on account of delay in issue of 2650158. In view of the above explained facts. illegally allowed the Bank Guarantees provided by way of Performance Security to lapse.00 letter to proceed (Initial expenditure between 19. save and except those which are already Description . 27.00 of BG Total 3374980. Tribunal was also constituted on 06. It is therefore submitted that the contents whereof. A-1 Amount claimed (Rs.08. being in a narrative form.05.High court of Calcutta and despite the orders for maintaining status quo given by the Hon’ble Court.28 - .00 due to delay c) Differential interest on Margin Money 263975. Claim No.2006 to 29. unreasonably and illegally do not hold water.A-1 : Claim No. are not capable of any para-wise replies. the claims raised by the Claimant are not eligible and reasons are placed also in further paras.2006) b) Additional Bank Guarantee Charge 460847. In view of the said directions of the court to maintain status Quo.06. It is a matter of record that subsequent thereto. the present Ld.00 1. Claim No. In view thereof. That the averments of the Claimant. the said bills of the Claimant were not processed.2008 pursuant to invocation of arbitration by the Claimant. the allegations of the Claimant to the effect that the Respondent has acted unfairly.
pertains to certain alleged losses purported to have been incurred by the Claimant during a period prior to the execution of the Contract. way leaves and permits issued by concerned Govt. authorities for movement of such heavy machinery. (iii) extra charges for bank guarantees due to delay and (iv) extra differential interest on margin money for issuance of bank guarantees. log books.. any claim which is prior to the said date is de hors the Contract and for the same reason is not maintainable before this Ld. That the above alleged claim. the Claimant had mobilized all the plant. That the present untenable claim has been built-up purportedly on account of costs and expenses incurred on account of (i) idle plant & machinery. they had to be demobilized and redeployed at considerable costs and expenses. Tribunal. by the Claimant’s own showing. militates against its veracity and credibility of the alleged claim. 2. 3.2006.29 - . In as much as the Contract was executed on 24. That the very fact that such a claim has been set up totally in the absence of any contemporary correspondences. may be deemed to have been traversed in extenso and rebutted by the Respondent. machinery and manpower at the site and owing to the delay on the part of the Respondent to issue the Letter to Proceed. totally devoid of any contemporary documents in support thereof and is entirely based on the Claimant’s bald claim that in expectation of the Letter to Proceed. Since the onus of proving the claim is squarely on . (ii) idle manpower. in support thereof. which are being claimed.08. beginning from June 2006. payment receipts etc.matters of record. 4.
To be more explicit. the Claimant has failed to discharge the said onerous obligation. Whether the Claimant complied with the said requirement or not . That the partial reliance placed by the Claimant on Clause 32 of the ITB in general and Sub.Clause reads as “ The notification of award will constitute the formation of the Contract. The request and the bidders’ responses shall be made in writing or by cable.4 of P-80 of Agreement).the Claimant. the Employer may request that the bidders may extend the period of validity for a specified additional period. The agreement provisions are as under : (i) Clause 15.2 enjoins the successful bidder to provide the performance security within 10 (Ten) days after receipt of the Letter of Acceptance. without thereby incurring any liability to the affected Bidder or bidders or any obligation to inform the affected Bidder or bidders of the grounds for the Employer’s action”. (iii) Unless and until a formal Agreement is prepared and executed this Bid.2 “ In exceptional circumstances. prior to expiry of the original time limit.” Clause 33 referred in Sub-Clause32. 5.30 - . but will be required to extend the validity of his bid security for a period of the extension and in compliance with Clause 16 in all respects. shall constitute a binding contract between us (Item No. together with your written acceptance thereof. permitted to modify his bid. 6. at any time prior to the award of Contract.1 : “ Notwithstanding Clause 30. A bidder may refuse the request without forfeiting his bid A bidder agreeing to the request will not be required or security. the said sub.” (ii) Clause 31.Clause 32. subject only to the furnishing of a performance security in accordance with the provisions of Clause 33. the Employer reserves the right to accept or reject any Bid.2 in particular is misplaced in as the said provision imposes a further condition for effective implementation of work under the Contract. and to cancel the bidding process and reject all bids.
2006 – Refer page 105 of the Contract. (ii) Maheshwari Brothers Ltd offered a rebate of 1. the successful bidder is required to furnish Performance Security within 10 days after receipt of the LOA.05.2005 – Refer pages 80 & 81 of Contract. – Refer page 18.7% during evaluation of bid on 03.2006 and received by NHAI on 12.06.2006 – Refer page 116 of the Contract. para 33 of ITB.05. (v) Performance Security in the form of Bank Guarantee was provided by the Contractor on 27.06.05. (iv) Under para-33.will be elucidated by the chronology of events as detailed hereinafter: (i) Bid was submitted by Contractor in the name of Maheshwari Brothers Ltd on 24. (iii) Letter of Acceptance was issued by NHAI in the name of Maheshwari Brothers Ltd on 19.2006 in the name of Maheshwari Brothers Ltd and confirmed by the bank by letter dated 06.1 of the ITB. sub-para 33.31 - .12.2006 – Refer page 05 of the Contract. (vi) As per internal correspondence in NHAI Headquarters the Competent Authority discussed for the above subject work and it was decided to keep the file pending till .
R-67.08. the issue. the file was put up for signing of the Contract Agreement with M/s.Kini & Co.32 - ..2006 – Ref Exhibit-R68.e. . on 26.06. The new Chairman has discussed and approved to sign the Contract on 17. it has been desired by the Chairman that the file be submitted to his successor.2006 by the concerned Manager in Headquarters.08.. Contractor formally informed NHAI regarding the change of name of the company with relevant documents from the ROC. The same was discussed by the then Chairman on 31. (viii) Legal Opinion was received from M.V.07..07. Maheshwari Brothers Ltd to MBL Infrastructures Ltd.2006.Refer pages 120. 121 & 122 of the Contract.07.. (ix) After receival of legal opinion.2006.2006 – Ref Exhibit.obtaining legal opinion in respect of the work of Barwadda-Panagarh Section of NH-2 – Package-II. vide letter dated 25. Maheswari Brothers Ltd. whether in the light of the change in the name of the bidder i. (vii) On the request of the Claimant. (x) By a letter dated 07. it would be appropriate for the Respondent to enter into Agreement with MBL Infrastructures Ltd was referred for legal opinion by the Respondent vide letter dated 30.2006. Advocates.
Refer page 68 of the Contract and the First Indent (Exhibit R-70) placed on the Claimant.2006 Bank issued amendment to the BG dated 27. 8. immediately after execution of Contract could not be set up by the Claimant in time.2006 the Bank confirmed the Amended Bank Guarantee – Refer page 118 of the contract. It is also relevant to refer to the Claimant’s admission regarding its inability to mobilize heavy equipment in Exhibit C-23 at page 116.08.08. (xiv) Contract was signed on 24. (xiii) On 23.2006.05. Contractor wrote in continuation of earlier letters dated 07. That it is therefore submitted that there was no delay on the part of the Respondent to sign the Contract once the performance .08.08. setting up of which was mandatory.08.(xi) On 19. the work under the First Indent did not call for mobilization of manpower.2006 and 21.08. to the extent claimed by the Claimant. 7.2006 – Refer page 03 of Contract.33 - . Even otherwise. plant & equipment etc. (xii) On 22. It is a matter of record that even the field laboratory.2006 enclosing copies of MOA & AOA of MBL and Maheshwari Brothers Ltd – Refer page 124 of the Contract. That the Claimant’s averments about massive mobilization are hollow and without substance.2006 in the name of MBL – Refer page 112 of the Contract. Contract stipulates mobile maintenance unit and minimum equipment to be deployed at siteRefer pages 73 and 74 of the Contract.
c & c1) for Rs.: Description (a) Work done accepted.4.08.462/- .4.337/.) (b) (c) 163077188.8.131.52. Claim No.37.: Other recoveries amount Rs.2 – Recovered Amount Rs.: b) BOQ Item No. certified but not paid (i) IPC-8 (ii) IPC-9 (iii) Work done but not certified Wrongful deductions for alleged non compliances Amount deducted for non acceptable recoveries Total = Amount (Rs.05.37.14. The alleged claim therefore merits summary dismissal.A-2 (a.security.3 – Recovered Amount Rs.9.00 33929184.108.40.206/.12.00 15854841. b.012/.34 - .1 – Recovered Amount Rs.00 The analysis of the deductions made by the Engineer is correct and the reasons for the said deductions are as under: a) BOQ Item No.2006 vis-à-vis the Letter of Acceptance dated 19.: c) BOQ Item No. in accordance with Clause-33 of the ITB was provided by the Claimant and the reasons for signing the Contract on 24.00 41737012.2006 was solely attributable to the Claimant.40.00 4924020.00 1257462.794/.832.2.
4.27.1. median plantation.2. the documentary proof whereof have been furnished in Exhibit-R20 to R31. Recovery towards photographs and video graph has been made as per the agreement conditions.3 were made as per the Scope of Work. survey report on termination of the contract was prepared and submitted to this office is herewith enclosed and based on that the recovery was made and it is correct.The Engineer had brought to the Claimant’s Notice to the said deductions as and when the same was effected from the monthly statements/IPCs it happens regarding various non-conformance and recoveries were made accordingly.2 & 4.35 - . .6. The total recovery amount shown in the Exhibit:R50/A (Amended).12.462/was recommended by the Consultant to Respondent towards various non-conformance of BOQ items as under. Other recoveries for an amount of Rs. recovery towards surface unevenness of BC was made as per section 6 of Agreement implementation manual and maintenance intervention level Clause No. The recovery towards nonconformance for BOQ Items 2. Recovery towards casualties of median plantation done as per the survey report. Non lettering of distance measuring stone of BOQ item 2.8. The recovery calculations were made by the Consultant Engineer is herewith enclosed as Exhibit:R-64.
6. the Contractor has to conduct roughness index for the work done. PARA-WISE REPLIES ON MERITS: 1-2.014.A-2(c-1) : Claim No. That the contents of Paras are disputed and denied. 3.3.1 of Section 6 of the Contract. the contractor and the consultant within . A-2(c1) Amount claimed (Rs. The contents of the Para 3 are disputed and denied.14. That as per Clause 27.1 Part-I of GCC read along with Clause No.00 total payment due Description The deduction of Liquidated Damages as well as deduction of 20% from balance work to be executed as per Clause 54 of the Agreement were resorted to by the Respondent strictly in accordance with the provisions of the Contract. hence it can be done even for 100m also therefore Claimant’s argument is herewith denied and recovery made by the Consultant is correct.) Liquidated damages accounted in 3. There is no rule that BT has continuous stretch for conducting the roughness index.36 - .41. The Respondent reserves its right to make detail submissions in support of the same at an appropriate time. Recovery towards non-carrying out roughness measurement has been made as per Standard Specification of MOST/IRC/IS Specification. Claim No. Claim No.
The work was programmed and indents were finalized keeping in mind.e. 27. identify the activities of routine maintenance.11. It is submitted the in the minutes off the meeting held on 08. It is clearly mentioned that the inspection was made on 7th & 8th September 2006 by the consultant and contractor for finalization of the works which were undertaken under 1st quarter only. In view of the non submission of work programme by the Claimant.2006 i. the monsoon season which will affect the work in the months of June. the Engineer was constrained to finalize and issue the indents even in the absence of the required details in the interest of work. detailed discussions were held by the Team Leader with the contractor on the work indent to be . 4-5.1 of Para-I of GCC the same was required to be submitted within 28 days from the date of commencement of work.37 - . Therefore. after lapse of 70 days from the date of commencement of work whereas in accordance with Clause No.2006 (A copy of the same is marked as Document C/12) it is expressly mentioned that “Having identified the works to be taken up on priority in the Ist quarter. It is submitted that the Claimant was to execute the work during the currency of the contract period which was 12 months. It is a matter of record that the Claimant eventually submitted the work programme on 22.a period 28 days from the date of issuance of letter of commencement by the employer shall firstly. the Engineer finalized the work program and issued the indents to the Claimant for execution. Based on the above. 2007. the dry spell is available from September. July and August.. 2006 to May.09.
09. Further it is stated that the contractor has mentioned preparation of yearly maintenance program which is not correct (refer the claimant’s document C/12) where it is clearly mentioned that the inspection was made on 7th & 8th September 2006 by the consultant and contractor for finalization of the works which were undertaken under 1st quarter only. It is submitted that most of the works finalized under indent No.38 - .finalized.2006 for the first quarter (3 months) are general and ordinary works and which required no need of heavy machinery. The same was accepted and signed by the both the parties and therefore. Also the contractor was requested to submit the methodology / method statement for the items finalized now and to quantify the items of work”. 6. there is no question of any discrepancy in finalization of first indent. the Engineer had requested the contractor to go through the Indent again and give its suggestions.2006 to 11. That as per Clause 27. The contents of Para 6 are disputed and denied. the contractor and the consultant within . Finally the draft work indent was prepared and presented to the contractor duly requesting the contractor to once again go through it and to offer their comments any. 6.1 for the period of 12.1 Part-I of GCC read along with Clause No. infact.3.12. The views of the contractor were taken into consideration .The contractor was explained in detail about the items of works to be executed during the Ist quarter and to ensure the safety of traffic and to avoid inconvenience to the road users.1 of Section 6 of the Contract. Thus from the above it will be clear that the Ist Indent was finalized only after detailed discussions with the contractor.
It is submitted that the Claimant was to execute the work during the currency of the contract period which was 12 months. the Engineer finalized the work program and issued the indents to the contractor for execution. in letter dt. 2006 to May. Only thereafter. M/s. after lapse of 70 days from the date of commencement of work. That the contents of the Para 8 are disputed and denied.12. Therefore.2006 (A copy of the same is marked as . 2007. 8.a period 28 days from the date of issuance of letter of commencement by the employer shall firstly. The Indent No. However.e. That the contents of Para 9 are matter of record and need no reply. the Engineer issues the Indent to the contractor for the execution of the work. July and August.20.. The work was programmed and indents were finalized keeping in mind the monsoon season which will affect the work in the months of June. Moreover.39 - .2006 i. Therefore. MBL Infrastructures Ltd. the dry spell is available from September. the Project Manager of Claimant. secondly a management meeting shall then to be called within a period of 7 days which is to be attended by both the contractor and the consultant.3 is very simple and single activity even for these types of simple works. Based on the above. the contractor has not completed timely. That the contents of Para 7 are denied and the replies to Para 4 & 5 are reiterated in reply to the same. submitted the work programme on 22.11. 9. 7. Indent will be issued by the Engineer after due consultations with the Contractor and with the consent of the Contractor.. identify the activities of routine maintenance.
12.1 for the quarter ending with 11. It is submitted that all the indents can not be issued at the same time in as much as the same have to fit in the work program and accordingly issued as and when the work under the earlier indent is accomplished. As a matter of fact the Claimant had taken the site on Lease and Submitted the lease documents to the Respondent only on 05.2007 as clearly recorded in Exhibit R-41. contents of the present letter are sufficiently evident to prove beyond doubt that the contractor was lackadaisical in its approach in executing the work. 10. 11. Thus the claim of the Claimant with regard to mobilization of machinery at site is clearly false and fictitious.12. However. Therefore. Therefore. a forecast of the future indents are issued to the Claimant for the purposes of the advance planning. That the contents of the Para 11 are disputed and denied.02. the negligent attitude of the Claimant is clearly borne out from the letter. the Claimant failed and neglected to cooperate with the consultant for .2006 shows that the contractor had failed to even complete the balance work of Indent No. It is submitted that the contents of letter dt. It is pertinent to submit that except for the 1st indent. 20. In the said letter the consultant also recommended penalty on the contractor up to completion.40 - . That the contents of the Para 10 are disputed and denied. It is denied that the Claimant had brought any machinery at the site for carrying out the works as contended.2006.Document C/16 in the written statement) the Engineer has informed the Contractor about the absence of their Project Manager and the Vice President due to which the execution of the work was severely affected.
1 of Para-I of GCC. However. a list whereof is appended hereto as Exhibit R-10. 14. The Claimant never complied with the requirements of Clause No. 2007) corresponds to the work which was supposed to be completed by the Claimant under the 2nd indent. Rest of the Para is wrong and denied. on account of which the Respondent received as many as 70 complaints from the road users during the period of Claimant’s services under the Contract. after the first indent even though the Consultant had initiated. 12 & 13. . c. finalized and issued further indents. It is further submitted that the details of work to be performed as stated in C/17 (the items proposed from 1st December.41 - . 27. d & e. it is submitted that all the indents contain the details of the locations as well. That the contents of Para 12 & 13 are disputed and denied. Non cooperation of the Claimant was also brought to the notice of the Claimant during various Management meetings. the Claimant had deliberately and intentionally continued with its non cooperation for reasons best known to them. the indents were issued from time to time in accordance with the work programme with proper notice to the Claimant giving a forecast of future work. The Claimant failed to carry out even simple maintenance of the reach. That the contents of the Para 14 are to the extent they are matter of record are admitted. Even though the Contractor has failed to cooperate with the Consultants in this regard.finalization of further indents. Whit regard to the contents of sub paras a. The contractor did not raise any of these issues at the relevant point of time. b. 2006 to 30th April.
3rd indent commencement date was fixed on 01. That the contents of the Para 16 are false.2006. b) As per the requirement to fulfill the agreement condition. c) As per agreement condition. .15. Therefore.42 - . 4th indent commencement date was fixed on 20. Hence. the Respondent gave the letter to proceed with the work without any delay. same cannot be allotted.12. The Claimant failed to plan and programme the work which was also brought to their notice during various monthly meetings. That the contents of the Para 15 are denied.2006. Therefore. 16. for the same the consultant had requested clarification. It is submitted that 2nd indent commencement date was fixed as 01. The indents issued on various dates during the agreement period are annexed as Exhibit R-42 to R-47.2006. (a) The premises of the Inspection Bungalow are not meant for establishing the Contractor’s work site. all the indents issued based on the requirement of the site condition and available time factor.12. Almost all the above three indents fall in 2nd quarter. It is submitted that after signing of agreement. there is no delay on the part of Respondent. the crane must be 15 ton capacity. mischievous and denied in entirety. the Respondent had requested the Claimant to submit required documents.12.
they should have obtained permission from Labour Department. it seems that the Contractor is not carrying out the work properly as per standards. f) That it is a matter of record that the entire site was handed over to the Claimant on 28. . For the same the Respondent has requested to submit the authorization duly certified with notary as the names of above said persons are not included in the Agreement. some of the RFIs are not approved on the same lines and reasons were mentioned by the Consultants there itself..08. If the Claimant wanted to work on public holiday. the Consultants have rejected to work on public holiday. This issue was never raised by the Claimant during the period of contract. it is stated that preparatory work was to be carried out for doing specified work i. the kerb painting works to be done after the repairs. the RFI was not approved by the Consultants which is correct as per agreement conditions. But no such power of attorney in this regard had been submitted to Respondent.2006. Like wise. are to be carried out. Further. Due to the said reasons. e) As per the applicable Labour laws. Hence.e. The same was brought to the Claimant’s notice. ii) Shri Suryanarayana Murthy.43 - . iii) Shri Riyazuddin Pasha as authorized persons by the Directors of its Company. the date from which the work was to be proceeded with.d) The claimant has appointed i) Shri Anju Maheshwari.
a meeting was . the Claimant had sought EOT on 02. The Consultant had brought to the Claimant’s notice from time to time their lapses during the management meetings as well as through correspondence on 7th November. 18.08. The original date of completion of work under Indent No. 2006 as the due date of completion. the request for EOT could not be finalized by the Respondent. In view thereof. In the said meeting. 19 & 20.07. However on 31st October.2007 on certain conditions as per the meeting held at the Head Quarters of the Respondent.44 - . but did not give any cogent reasons for noncompletion of the work within the stipulated period. That the contents of paras 19 & 20. That the contents of the Para 17 are disputed and denied. That the contents of the Para 18. Further. except those which are matters of record are disputed and denied. the Claimant had promised to complete the work within the extended period. 2007 the Claimant represented with details and requested EOT and the same was granted up to 31. However. it is submitted that due to the inability of the Claimant to execute the work.2007 and 02. A bare perusal of these letters would reveal that the Claimant had failed to mobilize its machinery in time at site and as a result thereof could not execute even the indented work in time. It is denied that the Claimant was prevented by the Respondent from executing the work.12.17. despite the said assurance the Claimant at the time of request for extension of time dated 13.1 was 11th December 2006 and not 2007.2007 marked as Exhibit: R-56 and once again failed to execute the work as per the terms of the Contract.2007.08. 2006 and 16th November. except those which are matters of record are disputed and denied.
2007 on account of which the revised value of work was shown by the Claimant as Rs. 31.10. The Engineer.65/.2007). The value of work to be executed under the Contract was Rs.12.and remained so till the date of termination of the Contract. the Claimant again committed breach of the condition to complete the works within the revised date of completion (31. Hence. vide his letter dt. A copy of the Contractor’s letter dt.R-48.44. However.held at the Respondents Head Quarters wherein the Claimant requested for reduction in the scope of work in view of the tenure of the Contract and to exempt certain work on account of the prospect of 6-laning.09.141. However. 60.10.2007 is annexed hereto and marked as Exhibit .19. 38. the reliance of the Claimant on the impugned revised work programme and revised value of work is de hors the Contract and have no sanctity whatsoever.2007 as approved by NHAI pursuant to the request of the Claimant subject to the Claimant submitting a revised work programme for completion by that date and levy of Liquidated Damages by Respondent. Subsequent to the meeting. 10.45 - . However.117/-. 10.2007 had informally revised the indents as per the request of the Claimant without seeking prior approval from the Employer and the reliance of the Claimant on the said letter of the Engineer is totally misplaced and inadmissible. the intended completion date of the work was 31. .31.12.09. the Claimant submitted a revised work programme dt. the said revised work programme was rejected by the Headquarters of the Respondent and accordingly the Claimant was requested to submit a detailed variation proposal.
the Claimant cannot absolve himself from the liability to execute the work envisaged in Indent no. The Claimant failed to perform even such activities. The Claimant never challenged the validity of Indent nos. It is pertinent to state herein that IPC 8 was submitted by the Claimant at the end of the extended period and IPC 9 was submitted after the termination of the Contract.46 - . frivolous and hence denied. much less to claim any compensation for the work executed. That the contents of the Para 24 are disputed and denied. 23. The failure and inability of the Claimant were willful and wanton and the Claimant’s efforts to foist the blame on the Respondent are mala fide and misplaced. they were without the necessary documents. As a matter of fact the Claimant never submitted any bills in time and if submitted. 22. the bills had to be returned to the Claimant several times due to insufficient information. That the contents of the Para 23 are disputed and denied as false. 24. 5&6. That the contents of the Para 22 are false. Therefore. 5 & 6 before the Respondent. Resultantly. the Respondent was unable to release the bills as the final account has to be settled and also various recoveries are to be made. . Therefore. The indents 5 & 6 were issued as per site requirements and the Claimant failed to co-operate with the Consultant for finalization of the indents and also certain items of works which did not need any machinery.21. That the contents of the Para 21 are matter of record and needs no reply.
26 & 27. However. The liquidated damages were imposed and calculated IPC wise as per details given in Exhibit R-50 & 50/A (Amended) appended hereto. Thus. Further it is submitted that as per Exhibit:R-43 the stretches covered in the indents were more than 400mts and it is a matter of record that in the revised work programme. the Claimant . The Claimant was well aware that the contract was for the repair and maintenance and quoted the price accordingly. It is a matter of record that the extension of time was granted on the specific condition that the LDs would be imposed.47 - . In fact the Claimants did not need anybody to prevent them from completing any work in as much as the Claimant themselves are eminently capable of not completing any work assigned to them on their own. 28 That the contents of these Paras 28 are disputed and denied. That the contents of the Para 25 only to the extent they are matters of record are admitted. The Contract entered into between the parties was for maintenance and under any maintenance contract it is unlikely that the work will be executed only in continuous stretches. It is emphatically denied that the Respondent prevented the Claimant from completing the work under the indents. the recovery of liquidated damages became impossible due to the minor value of work executed by the Claimant and the priority for recovery of mobilization advance. the Respondent was unable to recover whatever amounts were shown in the Measurement Books for future recovery. any claim of the Claimant regarding the additional cost is wholly misconceived and liable to be dismissed. That the contents of the Paras 26 & 27 are disputed and denied. Therefore.25.
Hence the Consultant has taken in to the consideration that the minimum period has to be given to the Claimant for mobilization of heavy machinery and also keeping in mind that the onset monsoon may start from June. The Respondent has narrated in detail the true and correct sequence of events in the Preliminary Submissions which are relevant to the present untenable claims and the same clearly negate the misconceived theories sought to be advanced by the Claimant in support of the untenable claim. That the contents of the Paras 30 to 35 are based on conjecture and surmises and therefore are disputed and denied in entirety. However. the Consultant has finalized indents as per site requirement as well as the available dry spell i. It is submitted that after the First Indent. . the commencement date was fixed as 01.himself submitted his work plan for stretches varying from 100m to 400m length for BC laying as will be evident from Exhibit:R-59. the Claimant failed to cooperate with the consultant in finalizing the Indents. That the contents of the Para 29 are disputed and denied. As regards the 2nd indent.2006.e. 30-35. 29.12. The Claimant consciously entered in to Contract with the Respondent for the work covered therein and the extraneous considerations which are clearly outside the Contract cannot justify the failure of the Claimant in the faithful execution of the work. from 12/06 to 04/07 because the monsoon generally commences from June onwards. The contentions therefore merit summary rejection. 2007. It is very obvious that the Claimant has sought to invent reasons to cover up their inefficiency and ineptitude to handle a contract of this magnitude.48 - . after the lapse of 80 days of original commencement of work.
It is emphatically denied that the said works were not specified in the Indents. the pipes were to be realigned and a concrete body wall was to be reconstructed. For the urgent repairs to eroded portion on V-V Section LHS.49 - . the quantities thereof are also specified in the indents. The Claimant was reportedly facing personal cash flow problems which obviously reflected in the slow progress of work. indents are issued for various items which are required as per the site conditions and as and when certain item of work is required or forecasted. Even then. That the contents of Para 39 are disputed and denied. These items were already included in the indent issued. The Claimant could not sustain even the costs associated with the execution of work under the Contract which clearly negate any substantial investments on the part of the Claimant as claimed or at all. 39. Further. As per the Maintenance Intervention Levels given in page No. In a maintenance contract. That the contentions contained in Paras 36 to 38 are baseless and preposterous and therefore strongly disputed and denied. It is submitted that the nature of items are proposed in the First Indent did not call for any heavy machinery and the items were ordinary / simple maintenance activities.75 of Contract the alleged work executed by the Claimant in Para 58 was a maintenance work and a part and parcel of the Contract. the Claimant failed to fulfill the obligation as per the Contract. Ramavarappadu on NH-5. . the Claimant was not geared to handle even the simple work contemplated under the Contract due to improper planning. inability. inefficiency and cash flow problems which resulted in the non completion of work within the indented dates.36-38.
The establishment of field laboratory was not only for the bituminous works but also required as per the Contract conditions to test and verify the quality of work of various items of works which were under BOQ.2007 had informed the Claimant that the Claimant failed to achieve a minimum of 30% progress when in fact half of the Contract period was already over. It is emphatically denied that the Respondent had extended the time frame in view of its default. That the contents of Paras 44 & 45 are disputed and denied.50 - .04. It is further denied that due to the extension of time frame the Respondent lost its . That the contents of Para 41 to 43 are disputed and denied. That with respect to the contents of Paras 46 & 47 of the Statement of claim it is submitted that the work was revised and submitted by the Claimant for approval due to the failure of the Claimant to complete the work within the time prescribed under the Indents. That the contents of Para 40 are baseless and preposterous and therefore strongly disputed and denied. The averments contained in the Preliminary submissions are reiterated and reaffirmed.40. The Respondent in its letter dated 18. 41 to 43. 44 & 45. 46 & 47. In the Contract. The Respondent further informed the Claimant about its failure to establish the lab with all the prescribed equipment. it was very clearly specified that within 30 days from commencement of work the field laboratory was to be established. The untenable and far-fetched reasoning devoid of rationale adverted to by the Claimant cannot negate the evident fact that the execution of the work was too slow and the Claimant failed to execute the work in consonance with the work program.
submitted the same voluntarily as will be evident from Exhibit:R-60. That the contents contained in Paras 50 & 51 are disputed and denied. 50 & 51. The imposition of Liquidated damages by Respondent is as per Clause 45. it was very clearly specified that levy of the Liquidated Damages would continue. As a matter of fact in the letter granting extension of time. That the contents of Para 52 are disputed and denied. Therefore the respondent recorded the LDs in the M-Book are tabulated and enclosed as Exhibit R-50 & 50/A (Amended) to adjust the same in future bills due to negative value of work done.51 - . It is submitted that the Claimant was under financial crisis and requested the Respondent not to recover the amount of LD from the payments and instead offered to submit BG’s of equivalent value in lieu of LD and upon acceptance of the same by the Respondent.1 of the GCC of the Contract. 48 & 49. The respondent had already withheld the amount towards liquidated damages in running bills as a paper adjustment because the value of work done by the contractor was very less in the beginning months and the amount was only sufficient to recover mobilization advance. The Respondent agreed in good faith and with a view to help Claimant to complete the work. . 52.right to levy LD on the Claimant. That the contentions contained in Paras 48 & 49 are baseless and preposterous and therefore strongly disputed and denied.
09.A-2(f) : . 58.12.12. The work was not completed in time due to reasons totally attributable to the Claimant. 60.12.2007 as promised by the Claimant. That the Claimant failed to complete the work on or before 11.e. original date of completion as per agreement condition and once again failed to complete the revised work program within extended time period i. That the contents of Para 58 are disputed and denied.2007. That the contnts of the Para 60 are disputed and denied. Therefore the Contract was terminated by the Respondent on 31. Due to the breach of the Contract by the Claimant. Tribunal.2007. 31. The Liquidated Damages are imposed as per the terms of the Contract and any contention to the contrary is emphatically repudiated. That the contents of Para 61 are disputed and denied. Claim No. 61. 59. That the contnts of the Para 59 are disputed and denied.53-57 That the contentions contained in Paras 53 to 57 are baseless and preposterous and therefore strongly disputed and denied.52 - .2007. Therefore. the Contract was not extended further. The contents of sub-paras (a) to (j) are also candidly disputed and denied and the Respondent reserves its right to make detailed submissions in rebuttal thereof at an appropriate time before the Ld. on account of continuous and consistent failures by the Claimant. the work was terminated on 31. The Respondent will refer and rely upon the Preliminary submissions and explanations made in paras 19-20 in this claim..
Claim No. Further. to the extent not specifically adverted to and replied herein specifically shall be deemed to have been traversed in extenso .2008 to Engineer and the Engineer.62. disputed and denied by the Respondent save and except those which are specifically admitted herein.A-2(f) Description Deduction in IPC 9 on amount of 20% of the balance work to be completed Amount claimed (Rs.51.022. Amount claimed (Rs. the Claimant submitted the bill on 13. Tribunal.02. After termination of the Contract.A-3 : Claim No. Claim No.53 - . Claim No. in turn submitted the . the Respondent reserves its right to make detailed submissions in rebuttal thereof at an appropriate time before the Ld.) 53. Suffice it would to state that the said recovery was made by the Respondent wholly in accordance with the Contract for the reasons and grounds already stated in the Preliminary Submissions and para-wise replies.518/- That the contents of this para are disputed and denied.00 That the contentions of the Claimant with regard to their alleged eligibility for the above misconceived claim are vebose and without any para numbers to facilitate any point-wise or para-wise Reply by the Respondent.) 1.A-3 Description Amount withheld from IPC-1 to IPC-9.77. It is further submitted that the contents of the SOC with respect to the above untenable claim.Claim No. which are not repeated herein for the sake of brevity.
06. It is a matter of record that subsequent thereto.00 Disallowed That the contents of the Para are disputed and denied.02.748.same to Respondent on 29. Therefore the Respondent recorded the LDs in the Measurement Book [Exhibit R-50 & 50/A (Amended)] to adjust the same in future bills due to negative value of work done. Claim No. the present Ld. the Claimant initiated proceedings under section 9 of the Arbitration and Conciliation Act. the said bills of the Claimant were not processed.) Respondent 15. Tribunal was also constituted on 06.2008 Exhibit R-51.1 of the GCC of the Contract as the value of work done by the Claimant was meagre during the initial period of the Contract and the amount was hardly sufficient to recover mobilization advance.54 - .2008 pursuant to invocation of arbitration by the Claimant.A-4 : Claim No. However. The Respondent had already withheld the amount towards liquidated damages in running bills as a paper adjustment in accordance with clause 45. even while the said bill was under scrutiny.A-4 Description Charges on Bank Guarantee for LDs and Differential interest on Margin Money of BG Amount Remarks of claimed the (Rs. illegally allowed the Bank Guarantees provided by way of Performance Security to lapse. In view of the said directions of the court to maintain status Quo. the Claimant offered to submit unconditional BG’s in lieu thereof in as much as the Claimant was .49. Claim No. 1996 before the Hon’ble High court of Calcutta and despite the orders for maintaining status quo given by the Hon’ble Court. However.
Claim No. which is clearly an after thought. to the extent applicable. 2.55 - . may be treated as reply to the averments of the Claimant contained herein.17.803. as per . The Respondent agreed in good faith and with a view to help Claimant to complete the work. the extra Bank Guarantees were submitted by the Claimant at their own option and therefore the above claim is clearly misconceived and untenable.) 18. That the present untenable claim. has also been raised on account of the alleged delay between the date of the Letter of Acceptance and the actual date of signing of the Contract. A-1 and therefore is not being repeated for the sake of brevity.A-5 Description Amount claimed (Rs. which has been dealt with in extenso in reply to Claim No.A-5 : Claim No. which again. The contents of the reply to the said claim. Thus. accepted the same. Even otherwise the present claim cannot lie against the Respondent under the terms of the Contract. such short-term contracts do not qualify for price adjustments. That the tenure of the services under the present Contract was limited to 12 months only and as per practice.under financial crisis and requested the Respondent not to recover the amount of LD from the payments. Claim No.00 Losses on account of price rise due to delays 1.
the other date. materials. i.12.12. It is rather strange that having failed miserably to achieve even the minimum quantum of work as prescribed under the Contract.05.05. Thus.2006 (page 105 .56 - .. the Contract had to be terminated by Respondent on 31. which is not prescribed by the Contract.practice are guided by Wholesale Price Index (WPI).e. That the present untenable claim is inconsistent with the Claimant’s written undertakings given to the Respondent at different points of time [Refer to letter dated 03.2007 has been shown as actual date of completion.2007. the Contractor will be ineligible for the said benefit during the period of prolongation of work if the reasons for such prolongation is attributable to the Contractor. 3. the reliance of the Claimant on WPI is misplaced.05.. 12. the Claimant seeks to claim a reward for such failure. That it has been contended by the Claimant that the Claimant had extended validity of its offer only till 26.2007 for failure on the part of the Claimant to achieve even the minimum progress in the work as prescribed under the Contract. 4. the Claimant has also relied on C-63. wherein the Claimant has taken two reference dates to calculate the present untenable claim. While the base date has been taken as 12 months after the date of Letter of Acceptance i.e. machinery etc. It is also a matter of practice that even under contracts with price adjustment provisions. As already stated in the Preliminary Objections (Refer paras 17 to 19). there had been a general rise in labour. In support of this contention. 31.2007 and that by the time the Contract could be performed. which is categorically denied and repudiated by the Respondent.
5. may be treated as reply to the averments of the Claimant contained herein.788/6 period (claim for overhead and establishment) 1.3 of the Contract Data. A-1 and therefore is not being repeated for the sake of brevity. Description Amount claimed (Rs.. That the present untenable claim.A-6 : Claim No. which is clearly an after thought.57 - . Claim No. 6.08. on 24. The contents of the reply to the said claim. Exhibit-C-23 (pages 115 to 118) and Exhibit R-56 (pages 172-173)]. the Claimant’s argument herewith denied regarding loss on account price rise due to delays for sign of the Contract.88. 2. No.) Claim No.2006. has also been raised on account of the alleged delay between the date of the Letter of Acceptance and the actual date of signing of the Contract. The present untenable claim is clearly de hors the provisions of the Contract and hence merits summary rejection.1 regarding signing of the Contract i.of the Contract).A. That under Clause 17 of the General Conditions of Contract read with S. to the extent applicable. The facts and reasons were already explained in Claim No. which has been dealt with in extenso in reply to Claim No. Therefore the contention of the . Therefore. the Completion Date for whole of the works is 12 months from the Start Date.94.loss due to prolongation of contract 5.e.
That the present untenable claim has been quantified by the Claimant in Exhibit.2006 and accordingly. However. on the request of the Claimant. the present claim is totally misconceived and untenable. while discussing the method for computation of damages.12. 4. which is clearly inapplicable to the present case. including Hudson Formula can be applied for . which will buttress the fact that the alleged prolongation of contract period was only on account of reasons attributable to the Claimant exclusively.58 - .08. the Contract perforce had to be terminated by the Respondent. the Claimant consistently failed to execute the work in a timely manner and as recorded in para-15 of the Preliminary Objections.Claimant to quantify alleged delay to be eight months reckoned from the date of the bid to the date of signing the Contract is totally misconceived and untenable. That the Letter to Proceed with the work was issued by the Engineer on 29. the Respondent accorded approval of extension of time for completion of work by 31. The Claimant has already placed on record the judgment of Hon’ble Supreme Court in the matter of Mc Dermott International Inc Vs Burn Standard Limited and Ors reported in (2006) 11 SCC 181. A perusal of the said exhibit reveals that the Claimant has sought to rely on the Hudson Formula. 3. the work was to be completed in all respects by the Claimant within 12 months from the said date.2007 subject to levy of liquidated damages (Refer C-27).C-68. It is a matter of record that due to the miserable failure of the Claimant to achieve completion even after such prolongation. has acknowledged that certain formulae. as elucidated in paras 1 to 14 of the Preliminary Objections. In the above circumstances. wherein the Hon’ble Supreme Court.
. The Hon’ble Court’ble Court has also held in para 97 of the said judgment that “a claim for overhead costs resulting in decrease in profit or additional management costs is a claim for damages”. It is rather strange that the Claimant. if any.1 of GCC and 11 of Contract Data to GCC) for failure to achieve the indent which is already under implementation. in total non application of mind.07.07. (b) The Contractor has to substantiate his claim for EOT as per Clause 28 in a prescribed format for consideration. (a) The contractor has to represent the specific extension of time duly specifying the quantum of work.59 - . value of work and programme for completion of balance work.MBL/2007/541 dated 02.2007 also replies / recommendations of Consultant letter SWI/HIGH/N1066/07/754 dated 24. has sought to claim damages from the Respondent under the Hudson’s Formula to reward them for their failure to complete the work under the contract on the plea of prolongation of time in the teeth of the fact that such prolongation was requested by them with the condition that no claim will be made in respect thereof as elucidated hereunder. The Project Director submitted para-wise remarks for the claimant’s reference No.2007 vide Exhibit:R108 wherein on page No.calculation of the damages. (c) The Authority may consider for grant of EOT to the Contractor duly imposing the liquidated damages (as per Clause 45.1429 the Project Director has opined that if the present contract is to be continued the authority may conduct the high level meeting to discuss and finalize the following issues.
have monthly milestones. The LD already levied will continue to be recovered. 2008.08. Accordingly a meeting was conducted at NHAI Headquarters on 29. (i) An unconditional Bank Guarantee amounting to Rs.1351 the Claimant stated that “Neither there is any escalation clause in the contract nor we intend to ask for the same for revised indented completion date upto 31.(d) The Contractor has to submit unconditional undertaking after arriving the item of works.08. Wherein the Contractor has requested for EOT to complete the works and NHAI had advised to submit EOT proposal through Supervision Consultants together with the following. (ii) (iii) An extension of the present performance Bank A programme of work for completing the balance It was specified that the programme shall Guarantee upto August. quantum of works and programme for completion of balance works and he should not arise any claim for consideration of EOT with liquidated damages.2 crores towards the liquidated damages (within 3 days) already imposed and likely to be imposed. work by December. As such.2007.2007 (Exhibit:R-18) to review the progress of works. the extension of time will not call for any extra expenditure to NHAI on other hand NHAI will able to get the work completed by us at the old price quoted by us”.12.2007 afterwards vide Exhibit:R-88 & 92 (Volume-19) in Page No. The Contactor has submitted request for EOT on 30. . 2007.3.60 - .
extension of time was granted by the Respondent reserving its rights to levy liquidated damages for the delays. In view thereof.2007 vide Exhibit:R-95 in Page No.2007 had admitted in unequivocal terms that the said extension of time.08. R-56 and R-18.A-7 : Claim No. In other words. the Claimant had categorically undertaken not to make any claims in respect thereof against the Respondent as evidenced by Exhibits C-23.978.00 .12. 5.2006). while seeking extension of time for completion of the work till 31. Claim No. the Claimant is legally barred from making the present untenable claim against the Respondent under the doctrine of “promissory estoppel”. would be without any financial implication whatsoever to the Respondent. Along the extension of time the Contractor has submitted an undertaking on 10. 7.) 2. Pursuant thereto.15.09. A-7 Description loss of profit due to reduction of amount of contract which could not be executed Amount claimed (Rs.1376 (Volume-19) wherein the Claimant stated that “we don’t intend to make any claims under the subject contract (agreement dated 24.61 - . Claim No. The present untenable claim is also de hors the provisions of the Contract and hence merits summary rejection. if granted. That the Claimant.07.
60. which is already on record as Exhibit R-18 (Page -60) only refers to the programme of work to complete the balance work and makes no mention of any revised programme of work as contended by the Claimant. 117/. are devoid of any documents in support thereof. which are only surmises on the part of the Claimant.141.2007 heavily relied upon by the Claimant. which is purely a figment of imagination on the part of the Claimant. That it has only been contended by the Claimant that the Claimant “came to learn that major changes would take place along the highway…”.08. . to Rs. While the Claimant has placed on record a proposal from the Engineer 31.65p. That the present claim. 19. 31. The contents of Exhibit R-18 no where state that the total requirement of routine maintenance was scaled down from Rs. conjured by the Claimant.1. This. is bereft of any substance whatsoever in as much as the contentions.44.10. It is a matter of record that the work under the six indents could not be completed only for reasons solely attributable to the Claimant. 2.10. The Minutes of the Meeting held on 29.as contended by the Claimant. The extent of failure on the part of the Claimant was such that the Respondent perforce had to terminate the Contract even after levying liquidated damages.38.2007 (EX C-57 on page 298) suggesting reduction in the scope for also failed to place on record any instructions/directions either from the Engineer or the Respondent reducing the scope or value of work required to be performed by the Claimant under the six indents as contended. as well as all further contentions as recorded by the Claimant are only surmises in as much as the Claimant has failed to place on record any document in support thereof.62 - .
4. That vide Exhibit C-56 Page-278. The statement by the Claimant is no evidence in support of this untenable claim.60 Crores.41.2007 which do not speak about any modification in the balance work.2007 to 31. Until an . ii) The status of submission of unconditional BG of Rs. the Claimant.on account of revised work programme whereas no such revised work programme was approved or ageed.26 Sl.3.6 having saving variation of Rs. In view of the above.2007 for the extended period.3. 5.09.12. The same was recommended by the Consultant vide Exhibit:R-89 and the same was forwarded to NHAI Headquarters vide Exhibit:R-90. i) The aforesaid recommendations are not in tune with the Minutes of Meeting dated 27. on his own proposed revised work program and stated that under the circumstances prevailing at site.2007 vide Exhibit:R-48 wherein the Claimant stated that update work programme for the period from 12.12.2 Crores is not known. NHAI Headquarters has pointed out vide Exhibit:R-80 that the consolidated variation statement includes VO No.350/. NHAI Headquarters called for certain clarification / No. For the same.63 - .08.1 “The Employer is the Chairman of NHAI”. the Project Director has recommended the Final Variation Order to NHAI Headquarters vide Exhibit:R-77. 19. The Claimant himself submitted the work programme on 10. As per Contract Data to GCC of Contract Agreement Vide Page In response to the above. No..79.09. the total value of Contract works out to Rs. observation vide Exhibit:R-86 viz.
iii) If requested by the Engineer. 7. i) If the Final quantity of the work-done differs from the quantity in the Bill of Quantities for the particular item by more than 25 per cent provided the change exceeds 1% of initial Contract Price. much less any reduction in the Contract Price. Further.2 of agreement viz. 6. the agreement amount cannot be reduced or altered. the Contractor shall provide the Engineer with a detailed cost breakdown of any rate in the Bill of Quantities. ii) The Engineer shall not adjust rates from changes in quantities without the prior approval of the Employer..64 - . as per Clause 35. the Engineer has no powers regarding alteration for scope of work until approval from NHAI. There is no such formal reduction on record.approval from Chairman. Reduction in contract price is a major contractual issue and unless the signatories to the Contract effect a formal amendment to the Contract. there can be any assumptions in this regard. . No evidence placed on record that NHAI informed the proposal for six laning of any stretch or consequent reduction in the Contractor’s work. the Engineer shall adjust the rate to allow for the change. As per Clause 36 of agreement.
In Annexure-4 of CD-III. the Engineer has stated that he has only expressed his opinion on the amount on which the 20% recoverable from the Contractor is to be calculated and that it is subject to legal interpretation. in view of the Engineer’s said statement. That the Respondent has already raised its objections in respect of the present claim as identified in Para 1 of the Preliminary Objections u/s 16 (2) of the Arbitration and Conciliation Act. Contractor’s reliance on Annexure-6 of CD-III in support of this claim is also misconceived as the Engineer has clearly recorded that the Contractor did not sign the said variation orders.8.AT.65 - . Reference may also be made to Exhibits R-79 & R-80 of Volume16. 2. That the contentions of the Claimant in support of the above misconceived claim are disputed and denied. this issue is open for determination by this Ld. on the second page of this letter (R-58). That the above alleged claim. by the Claimant’s own showing pertains to certain alleged losses on account of price rise due to delay in the issuance of the letter of acceptance. and the same is clearly beyond the terms of the Contract and for the same reason is not maintainable and/or arbitrable. 3. Tribunal. 9. 1996. Accordingly this issue will be deliberated when the 20% payment under the specific clause 54 is argued before the Ld. 10. 1. . Hence contractor cannot rely on the same. Thus.
harassment etc.00. Claim No. That for the reasons aforestated. the present misconceived claim does not call for any reply on merits. 3. 5. the present misconceived claim does not call for any reply on merits. 2.4. by the Claimant’s own showing pertains to certain alleged losses on account of price rise due to alleged delay in the issuance of the letter of acceptance. That the above alleged claim. 1996.) mental 1. 4. Description loss of Goodwill.66 - . Claim No. Amount claimed (Rs.A-8 : Claim No.000 That the above misconceived claim is preposterous and de hors the Contract. reputation.00. That the Contract was rightly terminated by the Respondent in accordance with the terms of the Contract and the procedures stated therein and was done for reasons wholly attributable to the Claimant. . and the same is clearly beyond the terms of the Contract and for the same reason is not maintainable and/or arbitrable. That the Respondent has already raised its objections with regard to the maintainability and arbitrability of the present misconceived claim under Para 1 of the Preliminary Objections u/s 16 (2) of the arbitration and Conciliation Act. A-8 1. That for the reasons aforestated.
5-5mtrs width Sensor Paver in lieu of 9mtrs That the contents of this Para are false. Claim No.A. disputed and denied.Liability for 10 submitted) Description Service Tax (to Amount claimed (Rs.2009 Exhibit R-52 intimated to the Respondent that the Claimant filed VAT 2007 returns and on scrutiny of such returns they appeared to be incorrect and incomplete and requested the Respondent to withhold an amount .00 getting work done in 100-400 meters length in lieu of 5-10km length of B. any claim of the Claimant regarding the additional cost is wholly misconceived and untenable and therefore liable to be summarily dismissed. Government of Andhra Pradesh vide letter dt. Commercial Tax Department. Description Amount claimed (Rs.03. Claim No.A-10 : Claim No. Therefore.67 - .) Claim No.A-9 : Claim No. A-9 on account of additional cost due to 94.Claim No.) be To be borne by the Respondent That the contentions contained in this para are not correct and hence denied.07. and other connected items and allowing use of 4. The Contract entered into between the parties was the maintenance contract and under the maintenance contract it is unlikely that the work will be executed only in continuous stretches.226. The Claimant was well aware that the contract was for the repair and maintenance and quoted the price accordingly.C.87.
A-11 Description Amount claimed (Rs.2008 to Engineer and the Engineer.) Return of original performance 3.02.02. 1996 before the Hon’ble High court of Calcutta and despite the .00.41.41.000/. the Claimant initiated proceedings under section 9 of the arbitration and Conciliation Act.A-12 : Claim No. Tribunal under Respondent’s Application u/s 17 of the Arbitration and Conciliation Act.14. A-12 Description Amount claimed (Rs.) Release of bank guarantees submitted as 3.A-11 : Claim No.1 of Contract Agreement ‘the Respondent shall perform such duties in regard to the deduction of such taxes at source as per applicable law. As per Clause 42.towards likely demand of the Commercial Taxes Department. in turn submitted the same to Respondent on 29.2008 Exhibit R-51. Claim No.14. the Claimant submitted the bill on 13.68 - .of Rs. However.00 security bank guarantee That this is a subject matter before this Ld. 60.014 security for liquidated damages since expired After termination of the Contract.014. 1996 and accordingly the above untenable claim does not call for any separate reply. Claim No.” Accordingly the withheld amount is retained by the Respondent pending further instructions by the concerned Department of the Government of Andhra Pradesh. Claim No. Claim No. even while the said bill was under scrutiny.
Claim No.A. It is however disputed and denied that the Claimant is entitled for payment of any amount whatsoever. the Respondent is entitled for exemplary costs and the present misconceived claim merits rejection. present and As per actual . A.A-14 : Claim No.A-13 : Claim No.41.a) Legal Charges 13 b) Cost of reference & arbitration.00 Claim No.69 - .2008 pursuant to invocation of arbitration by the Claimant. Tribunal was also constituted on 06. In as much as the Respondent has been unnecessarily dragged into disputes with resultant costs and expenses. In view of the said directions of the court to maintain status Quo. the present Ld.014 as claimed or at all.) Claim No. It is a matter of record that subsequent thereto.orders for maintaining status quo given by the Hon’ble Court. various expenditure with reference to Arbitration That the miserable failure on the part of the Claimant to execute the work under the Contract led to the present untenable disputes raised by the Claimant. Description Amount claimed (Rs.) 20. illegally allowed the Bank Guarantees provided by way of Performance Security to lapse.06.Claim for interest for past.14. much less Rs.000. 3.00. Description Amount claimed (Rs. the said bills of the Claimant were not processed and the above bank guarantees were also retained by the Respondent. Claim No.
no interest whatsoever is due or payable to the Claimant as claimed or at all. It is a matter of record that subsequent thereto. COUNTER CLAIMS OF THE RESPONDENT That the Respondent seeks to make the following Counter Claims against the Claimant: Claim Particulars Total Amount (Rs. However. 1996 before the Hon’ble High court of Calcutta and despite the orders for maintaining status quo given by the Hon’ble Court. in turn submitted the same to Respondent on 29.06.2008 pursuant to invocation of arbitration by the Claimant. it is a matter of record that after termination of the Contract.14 future @18% per interest on all claims year compound That the Claimant is eligible only for such payments which are in accordance with the Contract as quantified after finalization of the final bill. even while the said bill was under scrutiny.02. the present Ld.02. Since Claimant made it impossible for the Respondent to release even such payments to which the Claimants are eligible under the Contract. illegally allowed the Bank Guarantees provided by way of Performance Security to lapse. the Claimant initiated proceedings under section 9 of the arbitration and Conciliation Act.2008 to Engineer and the Engineer.2008 Exhibit R-51. the said bills of the Claimant were not processed and the above bank guarantees were also retained by the Respondent. However. Tribunal was also constituted on 06. In view of the said directions of the court to maintain status Quo.) Remarks .70 - . the Claimant submitted the bill on 13.
71 - .014 The Claimant has to renew the BGs / kept the BGs in force during the arbitration proceeding as per Agreement Clause No.14.28. various expenditure with reference to Arbitration (details will be submitted on the last date of hearing) Total Claim (except R-3) PRAYER .014 These BGs were furnished by the Claimant in lieu of Liquidated Damages which are yet to be realized by the Respondent as per terms of the Contract.25. Since the Claimant had allowed these BG’s to lapse. the Respondent is eligible to realize the said amount. 220.127.116.11.R-1 In lieu of Performance security bank guarantee 3.82.Will be intimated at the end of arbitration process as per directions of the Hon’ble Arbitral Tribunal 6.Tribunal 3.82.028 R-2 In lieu of Bank Guarantees submitted as security for Liquidated Damages R-3 (a) Legal Charges (b) Cost of reference & arbitration.028 --. This is also a subject matter under Respondent’s Application u/s 17 before the Ld. This Counter Claim is in lieu of the performance BG’s which have been allowed to lapse by the Claimant.41.3 (e).
D. JANGUPRA B NEW DELHI – 110 014 C. b. c & C-1). A-2 (f).The Respondent therefore respectfully prays that the Ld. A-1. KINI & CO. A-13 and A-14. Hold that Claim Nos. Pass such Order/Orders as may be deemed appropriate under the facts and circumstances of the case. A-5. A-10. A-3. Reject and dismiss Claim Nos A-2 (a. Order costs in favour of the Respondent against the Claimant. A-4. A-9. A-7 and A-8 are not maintainable or arbitrable.72 - . V. A-6. Place: Date: . A-12. Allow the Counter Claims of the Respondent. A-11. B. RESPONDENT THROUGH M. Advocates & Solicitors KINI HOUSE 6/39. Tribunal may be pleased to: A. E.
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