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Rajasthan High Court · body

2012 DIGILAW 154 (RAJ)

Jayant builders and Developers v. UIT

2012-01-13

VINEET KOTHARI

body2012
JUDGMENT 1. - In the present appeal, the appellant- contractor has challenged the impugned order passed by the learned Dist. Judge, Udaipur on 7.10.2011 rejecting the application under section 9 of the Arbitration and Conciliation Act, 1996 filed by the contractor on 22.11.2008 (Annex.9.). 2. In a contract for widening of a road known as "Gaurav Path" between Fatehpura Chauraha to Sukher in Udaipur, the appellant was initially awarded the said contract under the NIT No.12/06-07 dated 21.8.2006. However, since the obstructions on the said road were not removed by the respondent - UIT, the contractor appears to have made representations vide anndex.4, 5 and 6 dated 15.12.2006, 19.12.2006 and 21.12.2006. 3. Some work on the road appears to have been done by the present contractor and therefore, the appellant contractor made a claim of Rs. 20,00,000/- to be paid against the said work already done by him and vide Annex.7 dated 13.4.2009, the Contractor approached the Engineer Incharge of UIT, Udaipur for referring the said dispute to the Empowered Standing Committee under the contract alongwith the prescribed fee of Rs. 40,000/-. On account of said dispute being not referred to the Empowered Standing committee, the appellant contractor appears to have filed the present application under Section 9 of the Act of 1996 before the learned Dist. Judge, Udaipur vide Annex.9 on 22.11.2008. The said application came to be rejected by the learned court below by the impugned order Annex.1 dated 7.10.2011 and being aggrieved by the same, the appellant -contractor has approached this Court by way of present misc. appeal. 4. The learned counsel for the appellant submitted that while the said proceedings were pending between the Engineer Incharge and he did not refer the dispute to the Empowered Standing Committee, the contractor approached the learned dist. Judge by way of present application under Section 9 of the Act. However, vide communication Annex.8 dated 13.9.2007, the Engineer Incharge of the respondent - UIT not only cancelled the contract in question, but imposed the penalty of Rs. 39,99,385.78/- by way of damages under Clause 2 of the said contract for not completing the work within the stipulated time frame and also invoked clause 3 of the contract for completing the work at the risk and cost of the present appellant - contractor. 39,99,385.78/- by way of damages under Clause 2 of the said contract for not completing the work within the stipulated time frame and also invoked clause 3 of the contract for completing the work at the risk and cost of the present appellant - contractor. In the same communication, the Officer-incharge has also informed the appellant - contractor that whatever work has already been done by him, may be got measured in presence of concerned Assistant Engineer on 28.9.2007, otherwise, the said work would be measured by staff of respondent - UTI only at their own end. The learned counsel for the appellant therefore, submitted that the learned court below was not justified in rejecting the application under Section 9 of the Act of 1996 and the interim relief during the pendency of arbitral dispute between the parties for which the appellant is already stated to have approached this Court under section 11 of the Act for appointment of Arbitrator, the application under Section 9 of the Act could not be rejected. 5. On the other hand, the learned counsel for the respondent - UIT Mr. Deelip Kawadia submitted that the dispute regarding the damages to the extent of Rs. 39 lacs and odd imposed under Clause 2 of the Contract and invoking Clause 3 of the Contractor for completion of work at the risk and cost of the present contractor, is not even a dispute raised by the present contractor. The claim of Rs. 20,00,000/- for the work allegedly already done by the present contractor is a separate dispute, although under the same contractor for which only the present application under Section 9 of the Act was submitted by the appellant. However, since the dispute with regard to cancellation of contractor, imposition of penalty/damages and invoking of Clause 3 is not even a dispute raised before the respondent - UIT and the present application under section 9 of the Act was not filed with regard to said dispute, therefore, there was no question of granting any interim relief under section 9 of the Act to the appellant in the present case. He submitted that the impugned order was, therefore, justified and no interference is required to be made in the same. 6. He submitted that the impugned order was, therefore, justified and no interference is required to be made in the same. 6. Having heard the learned counsels, this Court is of the opinion that the dispute in pursuance of Annex.8 dated 13.9.2007 to the extent of revocation of contract itself, imposition of damages/ penalty of Rs. 39.99 lacs and invoking clause 3 for completion of work through other contractor is not even a dispute yet raised by the present contractor either before the respondent - UIT itself or in the application for referring the dispute to the Empowered Standing committee filed by him vide Anex.7 dated 13.4.2009. Unless and until such dispute is raised, the appellant contractor obviously could not approach the learned Dist. Judge under Section 9 of the Act. Therefore, as far as not granting any interim relief and rejection of application under section 9 of the Act under the circumstances narrated above is concerned, the impugned order is found to be unassailable. However, this would not deprive the appellant - contractor to raise the dispute with regard to revocation of the contract, imposition of penalty/damages and invoking of clause 3 of the Contractor,even at this stage , since the said dispute also arises out of the same contract. 7. Therefore, with a liberty to the appellant contractor to raise said dispute now before the respondent - UIT, and thereafter to take further legal measures as may be permitted to him under the Arbitration and Conciliation Act, 1996. Therefore the present appeal is liable to be dismissed and the impugned order dated 7.10.2011 is held to be justified. 8. Accordingly, the present appeal is dismissed with the aforesaid observations. No order as to costs.Appeal Dismissed. *******