IN THE HIGH COURT OF DELHI AT NEW DELHI

O.M.P. (COMM) NO. 510 OF 2023

IN THE MATTER OF:

Inter University Accelerator Centre (IUAC) …... Petitioner

Versus

M/S Apex Construction Co. .…Respondent

INDEX

S. PARTICULAR PAGE NO.

NO.

1 Written Submissions on the behalf of

Petitioner

Petitioner
New Delhi
through
Dated: .02.2024

(Manoj Ranjan Sinha, Nisha & Deepak Sain)

Advocate for Petitioner
M -17, Jangpura Extension, New Delhi
Ph: 011-79631015; 9811067271
 IN THE HIGH COURT OF DELHI AT NEW DELHI

O.M.P. (COMM) NO. 510 OF 2023

IN THE MATTER OF:

Inter University Accelerator Centre (IUAC) …... Petitioner

Versus

M/S Apex Construction Co. .…Respondent

WRITTEN SUBMISSION ON BEHALF OF THE

PETITIONER- INTER UNIVERSITY ACCELERATOR
CENTRE (IUAC)
1. The present Petition has been filed by the Petitioner under
Section 34 of Arbitration and Conciliation act, 1996 seeking
to set aside of the Arbitral Award dated 10.08.2023 made by
the Ld. Sole Arbitrator, Mr. Rakesh Kumar Agrawal in
Arbitration Case No. RKA/Arb/IUAC/1 Vide the said
award, the Ld. Sole Arbitrator made the award amounting to
Rs. 2,50,02,548/- along with declaratory award on GST and
future interest in favour of the Respondent.

2. The Petitioner, an autonomous center of the University

Grants Commission under the Ministry of Education, sought
tenders for Project Management and Consultancy to
improve research facilities through new construction in the
university system. An agreement dated March 15, 2010, was
made between the Petitioner and RITES Ltd., engaging
RITES Ltd. as a consultant for various services.
3. The Petitioner, in consultation with RITES, issued a Notice
on 27.08.2011, inviting tenders for constructing the
Auditorium Block and an Additional Floor at the IUAC
Campus in New Delhi, with an estimated cost of Rs. 900
lacs. The Respondent's offer was accepted, and a Letter of
Acceptance was issued on 30.01.2012, agreeing to a
Contract Price of Rs. 8,97,01,562.79, with a 15-month
execution period starting from 15 days after acceptance.
Work was scheduled to commence on 14.02.2012, with
completion set for 13.05.2013. The Respondent, as per the
Letter of Acceptance, submitted the Performance Bank
Guarantee dated 08.02.2012, followed by a detailed formal
agreement dated 14.02.2012. [DOCUMENT P/2; pg. 136-
516].

4. The Petitioner vide its letter dated 17.02.2012 informed the

Respondent that M/s RITES Ltd. would serve as the Project
Management Consultant, responsible for managing,
monitoring progress, supervising, and certifying contractor
bills. All correspondence with the Petitioner was to be
directed through RITES Ltd. Additionally, M/s RITES Ltd.
was designated as the Engineer-in-Charge with specific
roles and responsibilities outlined in Schedule A to F of
Section-4 of the Agreement dated 14.02.2012..
[DOCUMENT P/3; pg. 517].

5. That, on 27.02.2012 ,RITES requested a dumping area on

campus for excavation work, but the Petitioner responded
 that no space was available on campus, directing dumping
outside per the Agreement. As per the Agreement's
provision to issue rock boulders to contractors @ Rs. 120/-
per cubic meter, RITES notified the Respondent on
02.03.2012 about recovery charges. Despite this, the
Respondent did not respond, and without proof of rock
disposal, it was presumed they were used on-site or
disposed of elsewhere.

6. The Petitioner, represented by M/s RITES Ltd., repeatedly

notified the Respondent to expedite the Project,
emphasizing the contract's time-sensitive nature. The
Respondent was urged to increase resources for timely
completion. In a letter dated 05.12.2012. [DOCUMENT
P/5; pg. 519], RITES informed the Respondent of slow
progress on site due to insufficient manpower and materials.
Despite assurances, no action was taken by the Respondent.
Despite reminders, the Respondent delayed the Project. On
18.07.2013[DOCUMENT P/6; pg. 520-521], RITES
warned of potential contract termination if progress wasn't
accelerated.

7. That, on 19.11.2013[DOCUMENT P/7; pg. 522], RITES

informed the Respondent of billing discrepancies and
requested proper documentation. RITES requested a project
completion extension up to 31.12.2014, in order to keep the
contract alive with its right to levy liquidated damages from
the Respondent. On 23.05.2014[DOCUMENT P/8(Colly.);
pg. 523-524], granted by the Petitioner on 06.06.2014.
Further letters from RITES urged progress, noting
 deficiencies in work handed over. In a letter dated
16.03.2017 [DOCUMENT P/10; pg. 526], RITES
expressed concern over the Respondent's lack of interest in
completing pending work. The Respondent, in a letter dated
15.05.2017, promised completion of pending Auditorium
work within 30 days of receiving payment.

8. The work was completed by the Respondent after receiving

multiple extensions. On 30.06.2017 and 06.12.2017, the
final bill of Rs.2,98,55,145/- was submitted to the
Consultant and Engineer-in-Charge, M/s RITES. On
19.01.2018, the Respondent submitted Unconditional No
Claim Certificates[DOCUMENT P/13; pg. 529], certifying
that no further measurements would be claimed after the
Final Bill, with unconditional acceptance by the company,
and no claims beyond the contract agreements. As per
Clause 25.5 of the Contract, the Respondent-Contractor was
prohibited from making any claims against the Petitioner-
Employer after signing the 'No Claim Certificate.'
Additionally, the Contractor was barred from disputing the
accuracy of items covered by the certificate or seeking
arbitration. As per Clause 25.6 unequivocally stated that
both the Employer and RITES Ltd., acting as the
Employer's agent, would be parties to any arbitration
proceedings regarding contractor claims.

9. Thereafter, a Committee recommended extending

construction time for the Lab building and Auditorium
Block by the Respondent. The extension granted totaled
1509 days, with 1468 days free of damages and 41 days
 incurring Rs. 18,38,882/- in damages. On 10.07.2018,
RITES Ltd. submitted a Revised Final Deviation Statement
of 34.48%, amounting to Rs. 12,06,27,310.22, to the
Petitioner, which was accepted, adjusting the project cost
from Rs. 8,97,01,562.79 to Rs. 12,06,27,310.22 by IUAC.

10. During the contract/agreement period, a total payment of

Rs. 11,63,42,611/- was made to the Respondent against 19
running account (RAs) bills between 24.07.2012 to
23.05.2017. The Respondent accepted these payments
without protest or seeking remedy as per Clause 6 of the
Agreement, based on measurements verified by RITES. The
final amount paid to the Respondent was Rs. 11,97,52,752/-.

11. On 13.12.2018, Engineer-in-Charge, M/s RITES Ltd.

recommended the verified and corrected gist of the Final
Bill to the Petitioner for Rs. 42,13,422.78. M/s RITES also
submitted corrected Computerized Measurement Books
separately for the Civil & Electrical parts in hardcover to the
Petitioner. On 31.12.2018, the Respondent requested a
refund of the 5% Security Deposit, as the maintenance
period specified in the Agreement had ended. On
31.03.2020, the Petitioner checked and corrected the Final
Bill gist and paid Rs. 25,53,272/- to the Respondent via
RTGS. Additionally, a security refund of Rs. 47,10,079/-
was issued to the Respondent.
After receiving payment for the final bill and other amounts,
including the security deposit, the Respondent submitted a
claim for Rs. 4,04,01,825/- in a letter dated 18.02.2021. The
Petitioner, in letters dated 12.03.2021 and 16.03.2021,
 requested RITES Ltd. to examine the Respondent's claim in
accordance with Clause-25 of the Agreement

12. The Respondent appealed under Clause 25.1 of the

Agreement on 24.03.2021, claiming Rs. 4,07,08,217/-. The
Petitioner declined the claim in their reply on 22.04.2021,
citing lack of documentary evidence and item-wise claims.

13. Being aggrieved, the Respondent, on 20.05.2021invoked the

Arbitration Clause, claiming Rs. 4,07,08,217/-, GST,
interest, and costs. Pleadings were exchanged before the
Arbitrator, leading to the Impugned Award.

14. It is humbly submitted that the claims of the Respondent

solely on the basis of unverified pleadings, however, the
respondent failed to prove the completion of the Project
work in accordance with the Agreement and substantiate it
with any document.

15. It is further submitted that the Learned Sole Arbitrator

disregarded the aforesaid failure of the Respondent to put
forth any document to support their claim

16. It is also submitted that the Respondent kept changing the

amount claimed from time to time without following the
due process as prescribed under the Arbitration and
Conciliation Act, 1996 and the Ld. Arbitrator never objected
to the same despite it being pointed out by the Petitioner
that no steps were taken by the Respondent for modifying
the claim amount.
17. It is also submitted that the Ld. Sole Arbitrator, while
deciding the Claim No. 1 of the Respondent – Claimant,
completely ignored that the Petitioner had approved the
revised final deviation statement of Rs. 12,06,27,310.22 as
proposed by the Project Consultant, M/s RITES Ltd., on
24.07.2018, and accordingly, the final payment was made to
the Respondent by the Petitioner.

18. It is submitted that as per the agreement, neither less nor

excess amount can be paid to the contractor.

19. It is submitted that the Respondent had given an

‘Unconditional No Claim Certificate’ dated 19.01.2018 in
favour of the employer.

20. It is submitted that the Ld. Arbitral Tribunal also relied upon
objections raised by the Respondent-Claimant that were
raised for the first time by them in written note dated
12.10.2022 before the Ld. Sole Arbitrator provided by the
Respondent, which was not even the case of the Respondent
at any point in time. The Ld. Arbitrator, on the basis of the
written note submitted by the Respondent, proceeded to
pass award under these heads.

21. It is further submitted that the entire onus to disprove the

case of the Respondent was put on the Petitioner. At the
same time, when the Respondent made vague denials of the
reply given by the Petitioner, the same have not been even
examined by the Learned Sole Arbitrator. It is submitted that
 there cannot be two different rules of pleadings applicable to
the Respondent and the Petitioner wherein the Petitioner
was called upon to disprove the case of the Respondent and
no such rule was applied on the Respondent.

22. It is also submitted that the findings/observations contained

in the Award are liable to be set aside, under the provisions
of Section 34(2)(b)(ii) and Section 28 of the Arbitration and
Conciliation Act, 1996.

23. It is submitted that the Ld. Tribunal has gone by the narrow
technicalities and failed to do substantiate justice. Doing so
is contrary to the public policy of India.

24. It is submitted that the Ld. Sole Arbitrator discriminately

chose the material facts in the documents to justify the
findings in the Impugned Award. It may be true that the
Hon’ble Court in an Application under Section 34 of the Act
may not be required to examine evidentiary minutiae, but
this Hon’ble Court is empowered to and must interfere with
an Impugned Award in the proceedings where it appears that
the Impugned Award has been rendered with a unilateral
bias in favour of one party and not on the basis of impartial
evidence.

25. It is submitted that the Ld. Arbitral Tribunal has passed the
award only on the basis of the submissions made by the
Respondent- Claimant that was contrary to their own
pleadings and thus the award impugned is perverse and not
sustainable in the eyes of law.
26. It is also submitted that the Ld. Arbitrator completely
ignored the fact that the Respondent made claims for
different amounts at different points of time. Initially, the
Respondent, through its final bill dated 06.12.2017, claimed
an amount of Rs. 2,98,55,145/- out of which an amount of
Rs. 73,94,738/- was paid by the Petitioner. However, the
Respondent claimed an amount of Rs.2,16,68,509/- on
15.10.2022 and Rs. 2,36,40,393/- simultaneously on
15.10.2022 itself. The Ld. Arbitral Tribunal took the figure
of Rs 2,36,40,393/- for the purpose of adjudication and
erroneously awarded a sum of Rs. 1,89,88,685/- which on
the face of it is incorrect as an amount of Rs. 73,94,738/-
already stood paid to the Respondent by the Petitioner. The
Ld. Tribunal completely failed to explain the same.

27. It is also submitted that the Ld. Sole Arbitrator also

erroneously considered the written notes submitted on
behalf of the Respondent as part of pleadings and failed to
appreciate the fact that the pleadings could not have been
amended without following due process of law as was
prescribed under the Arbitration and Conciliation Act, 1996.

28. It is further submitted that the Ld. Arbitrator also failed to

correctly appreciate the fact that the amended claim in the
form of clarification submitted by the Respondent-Claimant
was well beyond the period of limitation as the same was
submitted almost five years post the submission of the final
bill dated 06.12.2017 and that the fact that time barred claim
can neither be referred nor can be adjudicated upon.
29. It is also submitted that the findings of the Ld. Arbitrator
that there was no full and final settlement of the bill by the
Respondent and the bills were prepared by RITES
themselves and were accepted under protest by the
Respondent-Claimant and thus the same remained open for
dispute, is totally incorrect and perverse. The Ld. Arbitrator
completely ignored the fact that the computerized
Measurement Books submitted by the Respondent for joint
checking and post checking of the same, corrected bills
were sent back to the Respondent-Claimant for submission
of the fair bills in hard bound manner for payment and
thereafter, the final bills were submitted by the Respondent-
Claimant on 13.12.2018 for payment.

30. It is also submitted that the Ld. Arbitrator further failed to

appreciate the fact that the Respondent did not object to the
measurement as regards the Electrical Works submitted by
the RITES Ltd.

31. It is also submitted that the Impugned Award is patently

illegal on account of factual inconsistencies. The Learned
Sole Arbitrator disregarded the material facts showing that
the Petitioner made several representations to the
Respondent with regards to the delay of the work and
intimating the Respondent liability for delay on several
accounts.

32. It is also submitted that the Impugned Award is also

erroneous on account of the fact that the Ld. Arbitrator
 while deciding the claim of the Respondent under the head
of the claim under additional rate of RMC M-30, wrongly
interpreted the provisions of the BOQ forming part of the
agreement and proceeded to award an amount of Rs.
25,93,147/- under this head as well, although the same was
never payable.

33. It is submitted that the Ld. Arbitrator even went beyond the
terms of the contract in awarding a sum of Rs. 1,12,740/- on
account of damages due to extra interest recovered on
machinery and T&P advance due to prolongation of the
contract. The same was de hors the provisions of Clause
10(B)(iii) and (iv) of the Contract Agreement. Hence, the
award under this head is also patently illegal.

34. It is submitted that the Ld. Arbitrator erred in Para 61 of the

award that “once the RCC is laid over the reinforcement, it
becomes hidden and cannot be measured to apply the
correction at later date” and allowed undue payment of Rs.
9,38,065/- referring the provisions of CPWD Specifications.
While adjudicating this part of claim, the Ld. Arbitrator did
not consider the submissions of the Petitioner that as per the
provision in Para 5.3.4 of CPWD Specifications the said
quantum of reinforcement of 15765.30 Kgs was neither
permissible nor possible at site. In fact, it was an over and
undue measurement recorded by the Respondent and
checked by the Engineer-in-Charge fraudulently on the garb
of the provision of CPWD Specification which the Ld.
Arbitrator has referred while allowing the claim.
35. It is also submitted that the Ld. Arbitrator erred in allowing
the payment of Rs. 21,57,249/- towards disposal of Hard
rock / Boulders in Item No. 1.11 (b) of the Agreement
knowing the fact that the Respondent did not fulfil the
provisions of the Agreement and the directions of the
Engineer-in-Charge and the Petitioner. The Respondent
failed to produce any document which establishes that the
Hard Rock / Boulders were disposed in Municipal dumping
ground as per provision in the Agreement which proves that
the Hard Rock / Boulders were used by the Respondent for
their own purpose. The Ld. Arbitrator ignored the
submissions made by the Petitioner that the Hard Rock/
Boulders are building materials and had monetary value.
Moreover, the Ld. Arbitrator set aside the recovery of Rs.
6,43,244/- on account of cost of the said Hard Rock /
Boulders as per provisions of the Agreement.

36. It is further submitted that the Ld. Arbitrator, despite the

Respondent having completely failed to bring on record any
document to suggest maintainability of its claim under
Claim nos. 7, 8 and 9, awarded a sum of Rs. 44,01,123/- in
favour of the Respondents which is again perverse, illegal
and incorrect.

37. It is submitted the Ld. Arbitrator also completely ignored

the fact that the Project Consultant, M/s RITES Ltd. was a
necessary party to the Arbitration Proceedings and should
have been made a party to the same whereas in the present
Arbitration proceedings, RITES Ltd. was not made a party.
38. It is further submitted that the Impugned Award in in
conflict with the public policy of India as inter alia it is in
contravention with the fundamental policy of Indian law, is
perverse and is in conflict with the most basic notions of
morality and justice. Moreover, the Petitioner is an
autonomous centre of the University Grants Commission
under the Ministry of Education and is funded by the
University Grants Commission, Ministry of Education.

39. In the view of the submissions made herein above, that the
present Petition deserves to be allowed and the Impugned
Arbitral Award dated 10.08.2023 made by the Ld. Sole
Arbitrator deserves to be set aside.

New Delhi

Date: 04.03.2024

(Manoj Ranjan Sinha, Nisha & Deepak Sain)

Advocate for the Petitioner