BEFORE HON’BLE MR. JUSTICE (RETD.

) PRAKASH PRABHAKAR

NAOLEKAR, SOLE ARBITRATOR

IN THE MATTER OF: Arbitration of dispute arising out of and

in relation to the work “Improvement by
widening raising, strengthening &
providing side drains, CC pavement on
various roads in Sonipat District”
(Package No.HSRDC/NCR/C-24/2010).

BETWEEN

M/s MG-KUNDU-SHIVALAYA(JV).
……… CLAIMANT

AND

GOVT. OF HARYANA through MD, HSRDC,

Panchkula (Haryana)
………RESPONDENT

The humble Rejoinder of the

Claimant named above;

STATEMENT OF REJOINDER TO THE STATEMENT OF DEFENCE

FILED BY THE RESPONDENT: -

A. Preliminary Rejoinder:

1. That, the whole of the defense being beyond the terms of the

contract, provision of law, admitted documents on record

1
 evidencing the conduct and intent of the parties and the very

Civil Engineering practice are denied.

2. That, no part of defense would be construed to be the admission

of the Claimant unless the same is specifically admitted herein

this rejoinder.

3. That, the documents relied upon by the Respondent to the extent

the same has no privity or the same has not been shared to the

Claimant and the contents of which are not in terms of contract,

law and practice are denied.

4. That, the Claimant reserves its right to add, delete, substitute or

amend this rejoinder, if it is so required in the interest of justice.

5. That, the Respondent has waived its right to defend the

statement of Claim in its SOC to which it has failed to defend

specifically in its statement of defense.

B. Rejoinder to the Preliminary submission:

[1.] Objection in Para 1 is irrelevant, M/s HSRDC is a Company owned by the

Govt of Haryana and is represented by the its Managing Director, HSRDC is

only a representative of the Govt. of Haryana who was assigned the job of

signing duly appointed by the Govt. of Haryana to enter into the contract, is

a goverenment entity. just as somebody would have signed on behalf of the

JV. also hence nothing wrong has been done and Govt of Haryana has been

rightly made a party.Hence, the Claim Petition against the Govt. of Haryana is

just and right.

1.[2.] The defense in Para- 2 is admitted to the extent the same are

matter of record.

2
 Rejoinder to the defense on account of “scope of work”

The averments made in Para-1 are admitted to the extent the

same are matter of record. However, it is stated that as against

scheduled date of completion on 07.12.2012, the Respondent

could be able to take decision for deletion of work for one road

i.e. “Kharkhuda, assudha road” only on 19.04.2012 and

conversion of two “RCC bridges” into “Steel Bridges” on

dtd.11.10.2011 which is beyond the terms of the contract Clause-

_______, apart from clear cut admission of Respondents default

in fulfilling its primary obligation.

The defense that “the claimant also agreed to this

change” is correct. But the reasons of such agreement of the

Claimant was out of duress and compulsion as by that time the

Claimant has mobilized into the site with huge infrastructure

apart from advances to various PRWs, suppliers etc. Moreover,

without prejudice and for the sake of argument, the Claimant

had agreed to such changes/deletion in anticipation of the fact

that the contractual and legal position of the parties would

prevail ultimately, the right of which is vested if the Claimant

as per the provision of the contract under Clause-__________.

2.[3.] The averments made in Para-3 to the extent appointment of

MSV International as the Independent Supervision Consultant

is matter of record. But it is respectfully stated that the

document marked as Exhibit-R/2 which is an agreement by and

3
 between the MSV and the Respondent having not privity to the

Claimant and the contract agreement by and between the

parties herein does not include the above agreements.

[4.] The averments made in Para-4 to the extent of releasing

mobilization advance timely does not absolve the Respondent

from its contractual obligation. The defense that “the Claimant

failed to deploy the required machineries and manpower of the

site and delayed the start of the work” is not correct and the

Respondent is put to strict proof thereof. Reference of letter dated

14.05.2012 (R-198) is out of context. Claimant has nowhere accepted that it

failed to deploy manpower and machinery and rather he has reassured the

respondent that from his side he will do whatever possible to ensure timely

completion. The Claimant did not concede that there is any breach in

appointing of manpower and machinery from his side. The Letter clearly

shows exibits that the work was affected by Force majeure events, local

agitation, festivals , paucity of land for diversion. Further, it will beis

pertinent to state that the Claimant through its letter dtd. 24.09.2011

provided the details of his men and machinery deployed at the site. The

alleged letter dtd.14.05.2012 having not been submitted nor

reference of the same from the SOC of the Claimant having been

taken, the Claimant is unable to place its position and reserves

its right to deal the same, if the Respondent would submit the

same hereinafter.
Further it is submitted that it is false that work program was not submitted

despite repeated requests, Respondents letter dated 20.06.2011 itself states

that work program was submitted by the claimant as early as on dated

4
20.06.2011 (R-4) , this becomes noteworthy that date of start was 08.06.2011.

The Consultant was hostile since start of the work and even after submission

of work program he was repeatedly asking for revised program again and

again (R-5) .

It is pertinent to state here that the Claimant submitted the work

programme on 20.06.2011 where as the averments made by the Respondent

regarding the non submissionnon-submission of the work programme in a

timely manner is completely falsefalse and untureuntrue. The Respondent

repeatedly asked for the revised work programeprogram whereas the

Respondent failed to provide drawings and cross drainage details to the

Claimant

It is also important to mention here that Consultant was asking various

drawing and cross drainage details from the claimant, but Respondent has

himself failed to provide contract drawings , based on which all other

details were dependent. Claimant letter dated 27.06.2011( C9/ 4, page xx of

SoC). All other relevant details were provided by various contemporary

correspondences , how ever instead of providing hindrance free possession

of site, respondent and its consultant were continuously pressurizing the

Claimant to coverup its own inaction and failures in removal of all the

hindrances like tree, electric lines, water and sewer lines.(Ref C-9 series and

R-9).

The reference of the Respondent to the letters marked as

Exhibit-R/3 to R/17 are denied to have any substance as the

same are routine in nature requiring follow-up action in the

field. The Claimant otherwise reserves its right to derive the

true context as to how the same are of no use so far as the claims

under references are concerned.

5
3.[5.] The averments made in Para-5 with reference to Clause-7.2

does not also help the Respondent as Firstly, it can only visit and

examine the site of the works and its surrounding to the extent,

it is possible through visual inspection of the site and Secondly,

if anything and everything can be obtained pertaining to

contract performance as per Clause-7.2 there was no requirement

for providing provisions in the contract other than Clause-7.2

itself. Thirdly,“the excuses given by the Claimant regarding

delay” covered under the contractual provisions other than

provision of Clause-7.2.

4.[6.] The defense in para -6, with reference to Clause-110, 110.1 and

110.3 of the technical specifications (wrongly mentioned as

agreement) is an half-truth as because the contract agreement in

hand defines obligations of the Respondent for obtaining

“permits, licenses or approvals”and unless the same are

obtained by the Respondent, the Claimant cannot be expected

to obtain the same being a private agency and not the owner of

the project. The Respondent is put to strict proof as to how it

has discharged its obligation under Clause-2.2.

It is further submitted that, Respondent’s effort to skirt away from its

responsibility on the basis of Clause 110, becomes infructuous in the light of

its statement in Clause 1.3.2 of Section 6 of Bidding Documents: Employers

Requirement (page no. 116-117 of Vol. II of SOC). This clause makes it clear

that for the removal of hindrances the Claimant would do the follow-up

6
 work with the authorities but the main cost for removal/shifting will be

borne by the respondent and respondent will actively assist the Claimant in

this work The Respondent's attempt to avoid responsibility by citing

Clause 110 is undermined by their own statement in Clause 1.3.2 of

Section 6 of the Bidding Documents (Employer's Requirements, pg. 116-

117, Vol. II, SOC). This clause clearly contradicts the Respondent's

position. This clause clarifies that the Claimant will handle follow-up

work with authorities for hindrance removal, while the Respondent bears

the primary cost for removal/shifting and actively assists the Claimant in

this process.

[7.] In para- 7 , reliance to letter of the Respondent in R/18 is not

correct in view of the contents of that letter itself of the

Respondent. The import and context of this letter would be

taken during the course of argument taking recourse to the

correspondences immediately prior to and after 16.11.2011.

Moreover, the reference to Claimant’s letter dtd.14.05.2012

being repetitive, the Rejoinder submitted are reiterated.

5.[8.] That, alleged reference to Exhibit-R/19 to R/61 in Para-8 does

not help the Respondent as (i) The same are equally routine

and formal in nature requiring the follow up action and

implementation of the performance obligations (ii) Which were

duly made/complied (iii) Thereby requiring no response in

writing (iv) For which only the work to the extent the scope was

available could be completed. Moreover, the Claimant reserves

its right to deal the irrelevancy of the correspondences referred

7
 in the table bearing Sl. No. 1 to 43 during the course of the

argument.

6.[9.] That, the defence in Para-9 to the extent of clause-14.1(C) is

half-truth. It is because if the quantity execution of any work

exceeds the tolerance limits, then the provision of Clause- 13.1-

13.3 will be applicable.

i) The averments made in Sub Para – i with reference to

conversion of 2 numbers of RCC bridges into steel

bridges is not correct and the Respondent is put to

strict proof thereof.

ii) The averments made in Sub Para-ii, except the

dropping of 1 number of roads on dtd. 19.04.2012, is

denied. It is stated that the dropping of the above

road is default of the Respondent under Clause- 4.12

& 8.5 as the consequence of such dropping/reducing

of the scope is detrimental to the contracted position

of the Claimant as it was ready and willing to execute

the whole of the contract as originally agreed. The

defence pertaining to release of performance

guarantee was obviously a mitigating action of the

Respondent apart from being contractual under

Clause-4.2, as otherwise the Respondent would have

been burdened with higher cost on account of

financial charges for maintaining the guarantees for

8
 that part of the work which are dropped from the

scope of the Claimant. As such reliance to R-62 and R-

63 does not helps the Respondent.

[iii)] The defence in Sub Para-iii is not correct on the face

of the letter of the Claimant dtd. 14.09.2011 itself (R-

64). The logic of the Respondent that Claimant’s

inability to start the work excavation etc., in

Kharkhauda-Assaudha Road, by itself proves that

“No Expenditure was incurred on this road at any

stage”. Moreover, also since the contract does not

provides for deployment of machinery differently for

different part of the road, the defence that “The

Claimant has never deployed machinery and

manpower at the site as he was aware that the work

could not be possible due to agitation by the local

villagers” is not correct.The defencse with reference

to R/66 and R/67 is not correct , even both the letters

were an evasive attempt to address real situation and

keep turn an blind eye to the on contractor’s request

to allow demobilization of its resources, as the

execution of the work was significantly hampered by a

law and order problem initiated by the locals. because

of work was not being allowed due to law and order

problem by locals. R-66& R-67 were was in response

9
 to claimant’s letter dated 30.08.2012(C-9/41). The

claimant further responded to R-66 and R-67 with a

letter dtd. 24.12.2012. R-66& R-67 werefurther replied

by Claimants letter dated 24.12.2012…….. (TIWARI JI

TO ANSWER)

7.[10.] That, the defence in Para-10 with reference to Exhibit-R/68

which is the taking over certificate by the Engineer on

dtd.14.06.2013 is undisputed. But the defense that “the

completion of the entire project including construction visits

was solely delayed on the part of the Claimant” is not correct.

The Delay in completion of the variation works is was entirely totally

attributable to the Respondent, due to delay in decisions regarding

drawings, structure type, site possession and item approvals.work being

affected due to delay in decision of drawing, type of structure, possession of

site and approval of items.

The Claimant’s letter dated 14.02.2015 shedspurt some light on the working

of the light on the Respondent’s actionss and reasonns for of subsequent

delays after the issuance of the taking over certificate. post, issuance of

taking over certificate,

“ Accordingly, although we had shown our inability to take up thr Job,

but on the persistant request of the department and we being under the
clutches of the department were forced to undertake the construction of
2 No steel bridges against our will. Moreover, the department just after
placement of the job at our disposal went in deep slumber and left the
agency alone to face the music. So mush so that the consultant who
claimed himself to be the specialist of the design of the bridges was
also removed from the asignent while on contrary the department was
not aware of the design of the steel bridges thus chose to make the
agencyescape goat.

10
It is ffurther submitted that though the bridges were got manufactured
as early as during 7/2014 but the issue remained under fire and no
decesion could be taken with regard to finalization of the bearing of
the bridge even after manufacturer of the bridge and decesion of the
bearing could only be conveyed a week back.”

Further to above ,above, the contemporary correspondences show

that variousthat various decisiondecisions with respect to the Said
bridge waswere delayed by the Respondent.
- Vide letter dated 23.10.2013 23rd October 2013 we have requested
the respondent responding to confirm the drawing provided by the
consultant MSP International,
- vide letter dated 30.11.2013 30 November 2013 , we have informed
thatinformed that Bridge work has been started so traffic c to
mehrana village may please be closed, requested to close the traffic
to mehrana village
- vide letter 30.12.2013 again we have requested respondent that we
have appointed an specialized agency for piling work but they
sitting idle waiting for road to be closed for commencing piling
work
- Vide letter 22.04.2014, seek clarification on bridge drawings
- Vide letter dated 27 October 2014 again submitted that Bridge
draings does not carry details regarding type of bearing, No of
bearing and load over bearing.
- Vide letter dated 03.12.2014 submitted details of bearings
- Vide letter dated 06.02.2015 submitted clarification regarding bridge
bearing
- Vide letter dated 25.02.2015 manufactures submitted details to the
respondent
- Vide letter dated 01.05.2016 Bill fo steel bridge was submitted
- Vide letter dated 06.02.2016 Submitted that collapse of bridge due
the reasons best known to the State Govt.
- Vide letter dated 25.10.2026 stated that Bridge at Bhalaut sub
branch is pending due to want of necessary decision on our claims.
Notwithstanding the fact that there was no supplementary

agreement to execute two steel bridges and road of 2.5 Km.

11
 descoped earlier, without prejudice it is stated as per the

provision of the contract Clause-10.2, 11.1 and 17.2 the

Respondent had the contractual right to execute the

defective/unfinished work, if not completed within the

defect liability period or extension thereof, through Third

Party Agency and recovered the cost there of from the

Claimants performance security/any other dues payable to

the contractor. The defense with reference to “As Built”

drawing in terms of Clause-4.1(d) is not correct for the

reasons. (TIWARI JI TO ANSWER)

8.[11.] That, the defence in Para-11 with reference to submission of

bills No.10th, 11th and 12th with the mentioning that the work is

completed does not in any manner sounds illogical on the face

of very nature of work left to be executed.

[12.] That, the defence in Para-12, with reference to Exhibit-R/69 and

R/70 is not correct, initially, NS items rates were submitted vide

ContractorsContractor's letter dated 30.05.2012, which cited the

project’s definite timeline with a requested a definitive decision

from the Respondent by 08.04.2012. with a request to convey

decision latest by 08.0402012 citing the reasons that project has

definite time line.……..(MR. TIWARI IS TO ANSWER)

The defense with reference to Exhibit-R/71, R/72and R/74 are

not correct, the Claimant replied to Exhibit R/71 & R/72, vide

its letters dtd. 30.06.2018 a& 14.01.2018, respectively. R/71

12
 was replied vide Claimants letter dated 30.06.2018(C12/3),

R/72 was replied vide letter dated 14.01.2018(C12/6)……..

(MR. TIWARI IS TO ANSWER). The documents marked as

R/73 is denied as the same was not having any privity with

the Claimant.

The Chronology submitted by the respondent itself reflects apathy and autocratic

working style of the Respondent and autocratic way of working . The submission of

rates is dependent upon the Respondent’s arbitrary decisions regarding

requirements and execution of additional items,with respect to requirement/

execution of any additional items. Approval for the rates submitted by the Claimant,

was inexplicably delayed until 11.10.2012, after the lapse of seven years, such

approval was never officially communicated to the Claimant. The claimant upon

receiving verbal information, the Claimant was pressured to revise the bill

drastically, from 8,80,19,496/- to 4,25,95,389/-. However, the payment for this

belatedly approved amount remains unreleased. Approval on the rates submitted

by the Claimant vide latter dated 12.07.2012 was accorded on dated 11.10.2019 after

laps of 7 long years (not communicated to the Claimant even as on date) on getting

verbal information claimant was forced to revise its part of bill from 8,80,19,496/- to

4,25,95,389/- Vide letter dated 08.11.2019( R-74) and even after the such delayed

approval payment has not been released till date. Demand of fund was initially

raised for an amount of Rs. 4,25,95,389/- vide Respondents letter dated 15.11.2019,

same was revised maliciously for an amount of Rs. 3,04,58,424/- vide letter dated

20.01.2020, without any knowledge or consent of the Claimant The initial demand

for funds (₹4,25,95,389) was submitted via the respondent's letter dated 15.11.2019

having been maliciously revised to ₹3,04,58,424 (Letter dated 20.01.2020) without the

claimant's knowledge or consent.

13
13. That, the defense in Para-13 is not correct as the steel bridge at

village-Brahamnan collapsed on the interveining night of May 7-8,

2016because as a heavily loaded a multy axle vehicle ( 16 axles, 128 tyres)

owned by M/s DARCL Logistics Ltd Gurgaon, exceeding the weight limit of

350 tonnes damaged the bridge structure, causing its collapse. with a heavy

load exceeding 350 tonnes load has hit the steel bridge resulting in to

collapse of bridge structure which cannot be the fault of the

Claimant as it had completed the construction of the steel

bridge as per the approved drawing by the Competent

Authorities including IIT….(MR. TIWARI IS TO CONFIRM)

The fact is that the that the said bridge had collapsed due to an impact from

an overloaded trailor, exceeding its design capacitybeing hit by a passing of

any overloaded Trailor for which the bridge was not designed. DGM-III

PIU Sonipat has acknowledged this fact in the following statement-:himself

admitted that fact in flowing words,

“ as you are aware that a heavily loaded a multy axle

vehicle ( 16 axles, 128 tyres) owned by M/s DARCL

Logistics Ltd Gurgaon with a heavy load exceeding 350

tonnes load has hit the steel bridge resulting in to

collapse of bridge structure constructed by your agency

on Bhanaut sub branch on Gohana - Sishana road on the

interveining night of May 7-8, 2016 . In the light of this ,

you are requested to investigatethe reasons leading to

collapse of bridge structure and initiate early steps for

restoration of Gohana- Sishana road to traffic. Besides

this, you may take any appropriate legal actionwhich

14
 you may deem fit at your end against the transport

company.”

Above letter is itself a testimony from the Respondent for acceptance

that the bridge structure had collapsed as it was hit by a heavily

loaded vehicle. Such incidents falls under the perview of the

respondent and other law inforcing agencies of the State of Haryana

which are sister concerns of the Respondent The aforementioned letter

itself serves as an admission from the Respondent that the bridge

structure collapsed due to the impact of a heavily loaded vehicle.

Such incidents fall under the purview of the Respondent and other

law enforcement agencies of the State of Haryana, which operate as

related entities.

The alleged reduction of 12th and final bill to the extent

of Rs.3,04,58,424/- as stated in Exhibit-R/75 is denied as this

document was not having privity to the Claimant. The

defense with reference to “As Built” drawing is denied being

the repetitive with reiteration of the submissions made

above.

REJOINDER TO PRELIMINARY OBEJCTION:

1. The defense in para-1 is not correct as the Claimant has filed its

statement of claim appropriately arraying “Govt. of Haryana

through Managing Director, HSRDC, Panchkula, Haryana” as a

party in para-3 of the SOC. Moreover, the Claimant Respondent

is a company incorporated under the provisions of the

15
 Companies Act, 1956 under the aegis of Department of Industries

and Commerce, Haryana.

2. The Claim Statement having been filed through appropriate

Authority (C1 & C2), the defense in para-2 is not correct.

3. For defense in para-3, the Respondent is put to strict proof.

4. The Respondent is put to strict proof for establishing the

adjectives used in para-4 of the defense.

5. The defense in para-5 that there is no arbitral dispute is not

correct. Moreover, the Respondent having not filed the

specifically provided application under the statute, this part of

the submission is not correct.

6. The defense in para-6 as to the default of the Claimant is denied

with reiteration to rejoinder made above the documents relied

upon in the SOC. Moreover, the alleged reduction of the final bill

is denied being beyond the provision of the contract and the

Respondent has not made out as to how and under which

provision the Claimant’s bill is liable to be reduced. Lastly, the

defense as to the non-arbitrability of dispute is not correct more

particularly when the Respondent has not filed specific

application before the Hon’ble Tribunal if at all there is no

arbitrable disputes between the parties as alleged.

7. The defense in Para-7 as to concealment of various materials facts

is a matter of proof and argument for assisting the Hon’ble

16
 Tribunal to adjudicate the disputes the right of which the

Claimant is rightly reserving for arguments.

8. The defense in Para-8 and 9 is denied and the Respondent is put

to strict proof thereof.

REJOINDER FOR:

(A) RE: ARRAY OF THE PARTIES AND REPRESENTATION:

The defense of the Respondent under reference is denied with

reiteration rejoinder made above to the extent of document C-1

and C-2 of the SOC.

(B) RE: CONTRACT PERFORMANCE IN SUMMARY:

1. The defense in para-1 to 6 require no rejoinder.

2. The defense in Para -7 with reference to the provision of

clause -7.2 of ITD is sheer misconception of the Respondent

as because the other provisions of the contact expressly

defining the contract performance obligation of the parties

would be redundant if anything and everything could have

assessed to be contractual obligation from the bare visual

inspection of few hours or days ,more particularly when

there is provision of unforeseeabilty( clause-4.12) and

Employer’s risk ( clause-17.3) etc, The defense that workable

site was always available is not correct on the face of

admitted documents on the records.

17
3. The defence in Para-8 is denied. As the reasons for non-

completion of the work in the Scheduled Period was for the

contractual reasons being is their attributable to the

Respondent or for various other reasons being part of the

compensation events under Clause-44.8.4.

4. The defence in Para-9 requires no rejoinder.

5. The defence in Para-10 to 12 is denied being incorrect as

except two bridges and one road which could not be

executed for the reasons of Respondent’s default, the rest

item of work which listed out in the taking over certificate,

were cosmetic and finishing item requiring execution in the

defect liability period as per practice.

The defence as to the non-consideration of the final bill is

denied being beyond the provision of the contract. The

defence with reference to “In actual the work of

construction of bridges was completed in February 2017

and accordingly the DLP of the two roads was cleared on

2017”are half-truth as completion of the work in February

2017 for two bridges has nothing to do with completion of

the defect liability period. Lastly, there was delay and

default being not attributable to the Claimant there was no

reason for imposition of damage and rather the Claimant is

entitled for damage and compensation for such

compensation events and to this effect, the defence that “No

18
 penalty/coercive action has been imposed on the Claimant

on account of completion of balance site of works during

DLP of two roads.” Moreover, as per the provision of the

contract once taking over is issued for any part of the work,

no damage can be levied for delay and the Respondent has

the right to take off the unrectified works, if any through

third party at the risk and cost of the Claimant the cause of

which has not arisen in this case.

6. The defence in Para-13 is denied and the Respondent is put

to strict proof for the same. Moreover, the Claimant will deal

with import and context as to how the Gamut procedure was

duly complied to.

7. The defence in Para-14 that Claimant has failed to follow

pre-arbitral procedure is not correct as stated in the previous

para.

8. The defence in Para-15 requires no rejoinder.

(C) RE: SALIENT FEATURES OF THE PROJECT:

The defence that “the work allotted to the Claimant was

never completed and only works of for two roads along

with the ancillary and outstanding works was done” is not

correct as the works to the extent there was scope and the

Respondent was ready and willing to get the performance

from the Claimant.

19
 The submission on account of final bill being repetitive the

Claimant reiterates the submission made above.

(D) RE: PERTINENT CONTRACT CONDITIONS:

Having not reproduced “All the relevant provisions” which

allegedly the Claimant has deliberately not reproduced, the

defense in this para meaningless.

(E) RE: FACT SHEET IN SUMMARY COVERING THE

PERFORMANCE SEQUENCE BY THE PARTIES AS

REVEALED THROUGH CORRESPONDENCES:

1. The defense that Exhibit-C-9, “nowhere even remotely gives

any suggestion that there was the delay of 199 days due to

the reasons attributable to the Respondent” is evasive and

the Claimant to this effect would take report and context of

C-9 Series documents during the course of the argument.

Similarly, the defence that “the project was never completed

only due to the defaults of the claimant” is denied with

reiteration of submission made above as to the extent that

delay and default was attributable to the reasons of

compensation events.

2. The reliance to the alleged letter of MSV marked as Exhibit

R/76 to R/178 and letters of the respondent marked as R/179

to R/194 denied to the extent the same are routine and follow

up letters requiring Claimant’s performance in the site. The

20
 import and context of those letters which are connected with

the facts and reasons of delay admittedly otherwise stated

through other documents on record would be dealt at length

during the course of the argument.

The Respondent’s reliance to Claimant’s letter dated

14.05.2012 being repetitive, the Claimant reiterates its

submission made above.

3. The defence in Para -b does not require any rejoinder.

4. The defence in Para-c are denied with reiteration of reasons

of delay as serialized by the Claimant being the cause of

action attracting the provision of contract for “time extension

and compensation” as per the plain and unambiguous

contractual reasons. Moreover, admission of the Claimant’s

statement with reference to the provision of Clause-3.5, by

itself establishes that the Engineer had entirely failed to

maintain impartiality to bail out the Respondent from its

legal, contractual and financial obligations.

5. The defense in Para-d that “while applying for time

extension the Claimant did raise claim for prolongation is

not under dispute” by itself establishes all such subsequent

action of the Engineer and the Respondent are to take

advantage of Claimants being a weaker party to the bargain.

21
6. The defense in Para-d (i) that “the Engineer was not

required to determine the additional cost while

determining the entitlement of time extension ………” is

not correct being gross derogation of the provisions of

contract the import and context of which would be taken

during the course of the argument. Most importantly, the

defense of the Respondent that “the Respondent was

constraint grant time extension in the interest of the work”

is evasive and complete abuse of Governmental power as the

same are admittedly in derogation of the documents on

record.

7. The defense in Para-d (ii) is denied being contradictory to the

admitted documents on record.

8. The defense in Para-d (iii) that “all payments had already

release to which the Claimant was entitled to as per the

contract agreement” is not at all correct.

9. The defense in Para-d (iv) that “the Engineer vide its letter

dtd.17.03.2013 recommended for sanction of extension of

time for 200 days to the Respondent are a matter of record”

by itself disproves and falsifies the entire defense so far

made by the Respondent that the delay and default is

entirely attributable to the Claimant. Moreover, the letter of

the Engineer dtd.17.03.2013 (Pg-559 of SOC) bears reference

letter of the Claimant dtd.15.03.2013 and other four letters of

22
the same Engineer recommending time extension

entitlement of the Claimant for 200 days. Respondent has

annexed letter dated 24.04.2012 &01.06.2012 but without the

respective annexures. Claimant is annexing letter dated

13.012.2011, 24.04.2012 & 01.06.2012 as (C/24-1 to 3)(TWIARI

JI PLEASE MARK ALL LETTERS OF ENGINEER TAKEN

REFERENCE IN PARA-3 PG-39 OF SOD ARE AVAILABLE

OR NOT, IF SO PLAESE GIVE REFERNCE OF THE PAGE

HERE) The defense that “it is denied that as per the

provisions contained in Clause-1.9, 2.1, 4.12, 8.5 and 17.4

and as per the law of the land, the Engineer was required

to determine the additional cost” is sure evasiveness of the

Respondent as the Respondent has not been able to disprove

the recommendation letter of the Engineer mentioned above

through basis and evidence to show that:

i) That reasons of delay are not attributable to

Respondent.

ii) Reasons of delay are not attributable to the

compensation events.

iii) Reasons of delay are attributable to the Claimant only.

iv) It had allowed time extension in the interest of the

work.

v) As to why it has not imposed delay damage, if at all

Claimant was responsible for the delay.

23
 vi) As to why it has not effected execution of the alleged

uncompleted work through risk and cost of the

Claimant.

vii) Whether and when the Respondent has completed the

balance work alleged to have been stated remaining

uncompleted for the Claimant.

viii) Why road work of 2.5Km. was de-scoped and the re-

scoped.

ix) Why decision was taken to go for steel bridges beyond

the agreed provision of the contract.

x) Who had prepared, recommended, approved and

proof check the drawings and design including the

loading capacity of the steel bridges.

10. The defense in Para-‘e to g’ that “the Respondent

communicated approval of the time extension 199 days is a

matter of record” by itself disproves Respondent’s all

allegation on account of Claimant’s delay and default also.

But, interestingly the defense in the immediately next

sentence that “it is submitted the Respondent was not

entitled to any additional cost and the Engineer was also

not requested to determine the additional cost”(para d-v of

SOD) is again not only extra-contractual, but also in

contradiction to the Statement of defense Para-‘d’, Pg-38,

wherein it has been stated that “while applying for time

24
 extension the Claimant did raise claim for prolongation is

not under dispute”.

The defense that “the Claimant during the original

schedule time was able to complete the work done to the

extent of Rs.51,87,84,021/-(BOQ Works only 45,42,22,848/- +

6,45,61,173 as Price adjustment etc) ” by it self is the best

peace of evidence despite the happening of the

compensation events Claimant had completed the above

value of work which is closed to 45% of the original value

notwithstanding the fact that it was not to execute work for

one road and two bridges the value of which is tentatively

Rs.45.30 crore . In other words if the value of the

inexecutable work of Rs.45.30 Cr is reduced, the net value of

revised scope comes to Rs.55.10crore out of which Claimants

execution as the schedule date of completion was 82.43%.

The defense that “the Claimant continued the work at the site on

the same terms and conditions and executed further work

done to the tune of Rs.19,82,73,559/- is factually incorrect ,

the contractor has submitted a its representation in which he

requested for new rates for variation of quantities as early as

on dated 15.02.2013. The contractor continued working even

after the stipulated completion date, completing the project

with an additional cost of Rs. 17,63,54,600/-(12th Final Bill –8th

IPC), which was evaluated at the old rates. and continued the

25
 work and actually after stipulated completion date quantum

of work of Rs (63,05,77,448-45,42,22,848=17,63,54,600/-)

( 12th& Final Bill - 8th IPC) was evaluated as per old rates

simultaneously The contractor also raised separate claims for

variations and NS items other claims were also been raised

for variation as per submitted Analysis of rate and other NS

items for the works “Four lanning of Kharkhoda- Assaudha

Road( 0.00 to 2.500 Km)” and the all NS items including

execution of Steel bridges, as per their submitted analysis of

rates.(TWIARI JI TO CHECK AND CONFIRM THIS FIGURE

AS Rs.19,82,73,559/- +Rs.51,87,84,021/- GIVES WAY TO

Rs.71.69 Cr WHICH IS NOT CORRECT AS THE

RESPONDENT ALLEGES THAT THE CLAIMANT HAS

NOT EXECUTED BALANCE WORK)

11. The defense in Para-h that “it is not admitted to the extent

that the Claimant had completed two steel bridges, but

failed to complete the balance work” is entirely false and

fabricated. The Respondent is put to strict proof thereof.

12. The defense in Para-i are denied as with reiteration of

submission made in Para-d(iv) above.

13. The defense in Para-j is denied being repetitive with

reiteration of submission made above.

26
 (F) RE: FACT SHEETS CRYSTALIATION OF “CLAIMS” INTO

“DISPUTES”:

i) The averments made in Para-a with reference to reliance of

facts sheets from July, 2012 till January, 2020 are entirely

misconception and misunderstanding of the Respondent.

The Claimant will derive import and context of the same

during the arguments.

Details/ table submitted by the Respondents constiuttes a is blatant

misuse of power and his position in the contract their contractual

positions. Iit was duty and obligation the obligation of the

Respondent to get the NS the NS items approved before ordering/

instructing to the claimant for execution of any item. It is totally

unacceptable in a contract that works were got executed by the

Claimant without its approval and thereafter take shelter that it was

not approved by the Competent Authority. This practice of directing

work execution without prior approval and then claiming a lack of

authorization by the competent authority is entirely unacceptable

within the contractual framework.

The Claimant has submitted its rates based on its input costs, same were scrutinized

by the engineer and forwarded to the Respondent, the work was got executed, and

final bill was submitted vide Claimant letter dated 06.02.2018. in the month of

November 2019 claimant was verbally informed that NS items were approved and it

was asked to amend the bills based on approved rates to get the payment ,

accordingly same was partially corrected (under duress) ) in the hope of getting

some payment vide letter dated 08.11.2019 after approval of NS items and even after

that payment has not released even as on date that goes to show the high

handedness of the Respondent as to how he is using his position in his favour.

27
Respondent has secretly and illegally deducted the cost of collapsed bridge

structure which was 100% complete except for sticking of some cosmetic items as

mentioned by the Respondent in its SOD without any fault of the Claimant and

without any consent or information to the claimant.

In November 2019, the claimant was verbally informed of the alleged approval of NS

items and instructed to modify its bills based on the purported rates to receive

payment. The claimant partially complied with this request (under duress) via a

letter dated November 8, 2019, in the hope of securing partial payment. However,

despite the claimed approval, no payment has been received to date. This sequence

of events demonstrates the Respondent's potentially high-handed approach and

potential misuse of their position.

Furthermore, the Respondent has secretly and illegaly deducted the cost of the

collapsed bridge structure, which the claimant asserts was 100% complete except for

minor cosmetic installations, as mentioned in the Respondent's (SOD). This

deduction was reportedly made without the claimant's consent, information, or any

established fault on the claimant's part.

Chronology submitted by the Respondent clearly reflects that after Claimant’s

submission of NS Items , Respondent kept lingering the matter in the guise of

departmental procedure and even as on date has not released the payment.

(TIWARI JI TO GIVE EMPHASISTO THE TABLE WITH

REFERENCE TO LIMITATION AND FOLLOWING OF

GAMOT PROCEDURE OF THE AGREEMENT)

ii) The averments made in Para-b does not required Rejoinder.

iii) The averments made in Para-c that “the Claimant was given

a favourable opportunity to complete balance item of the

work during the DLP from the date of issue of substantial

28
 completion certificate” is the evasive as it was the

compulsion of the Respondent for which only it requested

the Claimant as otherwise for completing the balance work

the cost to the public ex-chequer would have been sizable.

iv) The averments made in Para-d does not require any

rejoinder. However, admitting the “provision of contained in

Clause-14.10 as matter of record” otherwise establishes the

Claimant’s following of the gamut procedure.

[v)] The averments made in Para-e are denied and Claimant’s

raising of final bill on 06.02.2018 is obviously for the reasons

of Respondents failure. After the completion of the work in

Feb 2017 the Respondent has not formally taken over the

entire complete work , however, vide letter dated 30.05.2017

DLP was cleared except for two number steel bridges, and

subsequently the Final bill was submitted on

06.02.2018(TWIARI JI TO EXPLAIN WHY IN DELAYED IN

SUBMISSION OF THE FINAL BILL)

v)[vi)] The averments made in Para-f are denied on the face of

admitted documents on record which would be relied upon

during the course of argument.

vi)[vii)] The averments made in Para-g are denied with

reiteration of the statement made in the SOC.

(G) RE: FACTS PERTAINING TO THE ISSUE OF TIME

LIMITATIONS:

29
i) The averments made in Para-“a to c” to the extent the same

are not as per the terms of the contract, documents on

record and as per the Indian Law are disputed with

reiteration of Statement of Claim and rejoinder made above.

[ii)] The averments made in Para-d that “the Claimant left the

work in the year-2017 is factually incorrect, Engineer’s

letter dated 30.05.2017 nowhere reflects even implicitly, in

murmur that the Claimant has abandoned left the work.

Instead, the engineer has cleared the DLP for of all works

except two steel bridges, which were NS items works

awaiting its payment for the executed portions.and payment

was to be made for executed items. Therefore, the

averments regarding the remaining effect untill 07.12.2012 is

inacurate. In the light of above Respondent’s averment that

Agreement was live till 07.12.2012 is wrong and incorrect.

where as the present claim petition has been filed on

dtd.12.09.2023” is not correct.

Without prejudice to the above, the construction works in the instant

case was were completed on Feb,2017, thus, in arguendo, even if it is

assumed that the clock of limitation has started, it could not have

started before the date of completion of construction works i.e. Feb,

2017. Final bill was submitted on dated 06.02.2018, correction was

made on dated 08.11.2019, Arbitration, Arbitration was invoked by

Claimantsthrough the letter dated 17.11.2020. Since,When the

Respondents did not appoint has not appointed its nominee

Arbitrator, the Claimant approached the Hon’ble High Court of

30
 Punjab and Haryana Chandigarh vide its petition u/s 11 and filed an

Arbitration Case bearing No.96 of 2021 (O&M). Subsequently, the

Hon’ble High Court of Punjab and Haryana Chandigarh has

appointed this Hon’ble Tribunal vide its order dated 28.07.203. Thus,

from this aspect as well, the claim is well within the period of

limitation. Furthermore, prior to making the request for arbitration as

well, the Claimant attempted had tried to resolve the dispute

amicably. The Respondent’s averment regarding the limitation for the

time limitation is totally against the provision of Law and establised

the practices, hence prayed to be summarily rejected (TIWARI JI

TO EXPLAIN THE REASONS OF DELAY)

(H) RE: FINANCIAL STATE OF CLAIM:

CLAIM NO.1: AMOUNT PAYABLE IS AGAINST FINAL

PAYMENT AGAINST WORK DONE:

i) The whole of the defense against Claim No.1 including the

adjectives used by the Respondent are denied being not

correct in terms of the contract.

ii) The Claimant at the outset relies on the contents of the

letters addressed in support of this claim as the Respondent

has admitted the contents of letter dtd.01.03.2018, 30.06.2018

(wrongly mentioned as 30.06.2016), 27.07.2018, 14.01.2019

and 15.01.2019.

[iii)] The contract provides and it is the practice and law that if

any of the obligation which includes the Respondent raised

defense as to the Claimant’s obligation on account of “As

Built” drawing, if not perform by the Claimant would be

31
 performed by the Respondent at the risk and cost of the

Claimant. The Respondent has not produced any

documents to this effect, but is comfortably enjoying the

completed work by the Claimant. As such the defense of the

Respondent for non-payment of the final bill on account of

non-submission of “As Built” drawing is very much

incorrect and non-mitigating. Claimant has submitted its Final

statement as per the provisions of the Contract and the Respondent

has not objected with respect to format or description raised no

objections regarding its format or description. All the required

documents were submitted to the Respondent at the time of upon

substantial completion of the work. Therefore, the current Present

objections are only after thoughts and an effort to evade the

responsibility to entertain claim against work done(MR TIWAR

TO CLARIFY THE POSITION WITH REFERENCE TO

OUR COMPLIANCE FOR “AS BUILT” DRAWING AND

COPY OF THE FINAL BILL SO SUBMITTED ON

DTD.01.03.2018 AND ALSO WHETHER WE SUBMITTED

DRAFT FINAL STATEMENT UNDER CLAUSE-14.11)

[iv)] The Contractor’s representative, Mrs. Neetu Pawar was in constant

touch with the representative of the Respondent and based on

inputsfeedbacks received, re-submission of the partial Final bill was

madethe contractor submitted a revised partial final bill , hence

Respondent’s averment in this regards is false.Moreover, contract

also provides on account of lack of co-operation or accept

from the Claimant in complying to the obligation for final

32
 bill, the Respondent has power left to determine the final

bill ex-parte.

iii)[v)] Nowhere it is provided in the contract that in order to get

the final bill the Claimant will be under obligation for

submitting “all requisites’ documents such as original

invoices of bitumen, cement and steel etc. for which price

escalation is released”, it is respectfully stated that (a) the

works covered under running bills were executed in the

presence of the Engineers as well as the representative of the

Respondent (b) the value of work executed were recorded in

the measurement book (c) and with the certification of the

Engineer-in-charge and (d) approval of the Respondent

officials (e) the payment dues were released.

iv)[vi)] Similarly, price escalation is calculated based on the

formula and the RBI indices covering the value of work

done in the running bills. As such there was also no

requirement for furnishing any document in the final bill to

support the payment of price escalation already made.

v)[vii)] The Respondent having not referred the provisions as

per which the Claimant is under obligation to furnish the

consumption details of the materials in the final bill, the

Claimant is unable to deal the same.

[viii)] The Claimant has complied to its obligation under Clause-

9.1, 7.4 and 4.1 is without any substance, all the IPC’s were

33
 released after following due procedure, the and Engineer

has not levelled such allegation during continuity of work.

Payment of any IPC was not possible if required test were

not performedcould not be processed until the necessary

tests were completed.(MR TIWARI TO CONFIRM THE

POSITION AND OUR COMPLIANCE WITH REFERENCE

TO ABOVE CLAUSES)

vi)[ix)] The defense that “no illegal and unauthorized vehicles

were plying on this road” is not correct as admittedly for

entry of overloaded vehicle, the steel bridge collapsed. The

DGM of the Respondent vide his letter dated 30.05.2016 (C-

25) himself admitted in following words,

“ as you are aware that a heavily loaded a multy axle vehicle ( 16

axles, 128 tyres) owned by M/s DARCL Logistics Ltd Gurgaon with a

heavy load exceeding 350 tonnes load has hit the steel bridge

resulting in to collapse of bridge structure constructed by your

agency on Bhanaut sub branch on Gohana - Sishana road on the

interveining night of May 7-8, 2016 . In the light of this , you are

requested to investigatethe reasons leading to collapse of bridge

structure and initiate early steps for restoration of Gohana- Sishana

road to traffic. Besides this, you may take any appropriate legal

actionwhich you may deem fit at your end against the transport

company”(MR TIWARI TO CONFIRM THIS WITH

RECORD)

vii)[x)] The defense that “the Claimant was fully responsible for

the works executed at site still it is taken over by the

34
 Respondent” is correct but, the contract nowhere provides

as to Claimant’s obligation to watch and ward/allow/permit

the movement of the vehicles.

[xi)] The defense pertaining to Clause-12.1(A) is not correct as the

Claimant representative have moved pilar to post for getting

release of the payment due.Contractor’s representative Mr. Neetu

Pawar was in constant touch with the representative of the

Respondent and based on feedbacks inputs received, the contractor

submitted a revised partial final bill.re-submission of the partial Final

bill was made , hence Respondents averment in this regards is false.

(MR TIWARI TO CONFIRM AS TO THE POSITION)

viii)[xii)] The collapsing of the bridge for passing over of the

overloaded trailer has nothing to do with the painting

works of the bridge, as there are two scenarios available for

the Respondent i.e. Firstly, to recover the amount any paid

if the item of painting is incidental under any of the BOQ

item and Secondly, if the same is independent item no

payment having been made, the collapsing of the bridge

without painting does not have any contractual and

financial nexus. It is denied that “the requisites signages,

reflective tapes and hight gauge etc. were not fixed” and

the Respondent is put to strict proof there of (MR TIWARI

TO CONFIRM THE SAME THIS POINT). Moreover the

defense as to clearing debris of the bridge and lying of lot of

earth below the steel bridge is non of the contractual

35
 obligation of the Claimant and the Respondent has not

made out a case that it has incurred any cost for doing the

above works which otherwise is recoverable from the

Claimant subject to adjudication of the matter by the agreed

mechanism of the contract.

ix)[xiii)] The defense that “the construction of another steel

bridge on Sonipat, Mehalana Farmana Road was not yet

started by the agency at that time” is not correct.

After such erratic response of the Respondent when such huge

payment against even undisputed part of bills has been withheld in an

arbitrary manner by the Respondent for more than ten years , any

commercial intity can not not further invest crores of rupees with out

any expectation of reurn in near future. Reasonably discourages any

commercial entity from investing additional crores of rupees without

foreseeable returns in the near future.

As regards 2nd Bridge it is submitted that Vide letter dated 25.10.2016

stated that Bridge at Bhalaut sub branch is pending due to want of

necessary decision on our claims. It was the respondent who after

collapse of first bridge went in to slumber and avoided to take any

decesion with respect to the next Bridge and eventually due to non

cooperation of the Respondent construction of second steel bridge on

Sonipat- Mehlana road was delayed and finally completed in Feb

2017,Even when Claimant was hard pressed for want of funds and

the Respondent was not forthcoming & sincere about making his

payments. Regarding the second bridge, a letter dated 25.10.2016,

clearly states that the bridge at Bhalaut sub-branch remained pending

due to the lack of a necessary decision on the Claimant's claims. It was

36
 the Respondent who, following the collapse of the first bridge,

delayed progress by failing to take any decisions concerning the

second bridge. Consequently, due to the Respondent's lack of

cooperation, the construction of the second steel bridge on the

Sonipat-Mehlana road was delayed and ultimately completed in

February 2017, even while the Claimant faced financial hardship and

the Respondent remained unwilling to fulfill their payment

obligations (MR TIWARI TO CLARIFY THE DATE OF

COLLAPSING OF THE BRIDGE AND PERIOD OF

COMPLETION OF THE SECOND STEEL BRIDGE BY US)

[xiv)] It is denied that “the Claimant failed to submit the

complete case of NS items and variations” because all such

the required documents were submitted in time, however, the

respondent’s cronology presented in their SOD clearly establises that

the delays were attributable to them. but even chronology submitted

by the Respondent in his SOD clearly established huge delay on part

of Respondent. All these formalities were required to be completed

before execution of work, if the Respondent was not satisfied with the

submission of supporting , had any questions/concerns regarding the

correctness of the submitted documents then they should have

addressed these questions/concerns before issuing the work execution

order. it ought to have satisfied himself before ordering to execute the

work(MR TIWARI TO ESTABLISH THROUGH

REFERENCE OF DOCUMENTS)

x)[xv)] The defense that “the approved NS items rate were duly

communicated the Claimant and the Claimant never

objected to the approval of NS items communicated to it”

37
 as Firstly, the NS items rate was prepared unilaterally and

Secondly, that the Claimant had no option other than

accepting the same and submitted its revised final bill on

27.11.2019 after approval of the NS items by the Respondent

on dtd.11.10.2019 as it was under duress and compulsion by

that time. (MR TIWARI TO EXPLAIN WHY WE HAD NOT

OBJECTED THE NS RATE)

xi)[xvi)] The defense pertaining to reduction of final bill so

submitted under duress at Rs.4,25,95,389/- to Rs.3,04,58,424/-

is denied in complete derogation of provision of the contract

and law of the land as the Claimant neither provided the

Claimant with the breakup of the reduction nor it sought for

response of the Claimant before such reduction.

xii)[xvii)] The Respondent has not pointed out as to why it has

not even released the amount is it has accepted at

Rs.3,04,58,424/-, if for the sake of argument, it is accepted

that the reduction to the Claimant’s final bill was correct.

CLAIM NO.2: AMOUNT PAYABLE BEING COST OF

PREPARATION OF DRAWINGS:

i) The whole of the defense of the Respondent against in

Claim No.2 is denied with reiteration of correspondence

relied upon by the Claimant in the Statement of Claim the

fact of which the Respondent has not disputed.

38
 ii) The defense of the Respondent that “no such type of

drawings other than scope of the work was submitted by

the Claimant……….” is denied being evasive on the basis

of the correspondences relied upon. Moreover, it is not case

of the Respondent that the drawing so prepared by the

Claimant was part of the Claimant’s obligation in terms of

the contract.

iii) The reliance to Clause-4.1 of the contract and Clause-107.1

does not absolve the Respondent form the liability for

getting the drawings prepared through Claimant.

Moreover, the Respondent has not made out a case in the

defense that, it has prepared all the drawings as otherwise it

could have replied in the above line to the Claimant when

the Claimant made protracted correspondences. It was the

responsibility of the respondent to provide GFC drawings.

In terms of clause 107.1 claimant was obligated for setting

out of work after careful study of the drawing issued by the

employer/ engineer. Clause 1.3.19(b) only asks for

preparation of working drawings. (MR TIWARI TO

CLARIFY THE IMPLICATION OF OUR OBLIGATION

IN TERMS OF CLAUSE-4.1 AND 107.1 ABOVE)

CLAIM NO.3: AMOUNT PAYABLE BEING THE AMOUTN PAYABLE

FOR THE USE OF PMB-40 INSTEAD OF PMB-70 IN ITEM NO.20 OF

BC:

39
i) At the outset the Claimant beg apology for mistake in the

nomenclature of the claim which is correctly stated as

“amount payable for the use of PMB-40 instead of PMB-70

in Item No.20 of BC”.

ii) The whole of the defense against this claim is denied with

reiteration of the correspondences referred in the SOC

which have remained unrebutted.

iii) The alleged defense with reference to R/195 and R/196 are

denied as the same were not shared to the Claimant.

iv) The defense that “PMB-40 Grade bitumen (Elastomer type)

with elastic recovery of minimum 75% for BC works is to

be used and only difference in rates of PMB-70 (Elastomer

type) and PMB-40 (Elastomer type) bitumen shall be

payable to the Claimant and accordingly which has been

already paid to the Claimant upto 11th RA bill and the

same have always been accepted without any protest” by

itself does not absolve the Respondent from its liability

which flows from the provision of Sub-clause-13.1(b) and

lack of objection from the Respondent to the analysis of the

Claimant submitted through letter dtd.30.03.2012 (Pg-972-

975 of the SOC), same as except Respondent’s summary

rejection of the claim while answering to the final bill of the

Claimant dtd.06.02.2018 stating therein that the Claim No.3

is “Arbitrary and not based on fact”.

40
 v) The alleged determination of the rate for variation on

account of BC by the Engineer and the Respondent being in

violation of the provision of Clause-3.5, 12.2 and 12.3.

CLAIM NO.4: AMOUNT PAYABLE AS PER NEW RATE –

NECESSITATED DUE TO VARIATION IN QUANTITIES MORE

THAN 25%:

i) The whole of the defense against Claim No.4 including

the adjectives used in Para-1 are denied being evasive

apart from being extra-contractual.

ii) The defense that “no any BOQ quantity is exceeded in

this work agreement does not absolve the Respondent

from the liability of substantial reduction in the scope of

the work which are otherwise maintainable in view of the

provision of the Clause-3.5, 12.2 and 12.3 read with

definitions of “cost”.

[iii)] That, Respondent’s denial that Claimant is not entitled for new rates
being variation below less that 25% as provided in Clause 12.3(a) is

wrong and incorrect . The Following table provide the percentage of

variation against each item claimed.

Item Total Executed Percentage

Description of item Unit
No. Boq. Qty. Qty. variation
Earth work in

8 embankment sub Km 46.608 22.688 51.32%

grade
12 Construction of Cu 150282.95 107997.326 28.14%

41
 GSB m
Water bound

macadam grading Cu
13 a 57219.35 26122.312 54.34%
no. 3 (53 mm to 22.4 m

mm)
Water bound

mcadam grading Cu
13b 49535.68 26701.433 46.10%
no. 2 (63mm to m

45mm)
Brick masonry
Cu
29 work in 1:4 in 14160 5656.226 60.05%
m
foundation
Supplying , fitting

and placing HYSD

43 MT 1027.534 163.435 80.57%
bar reinforcement

in foundation

[iv)] In view of above , It is established that above mentioned quantities have

varied more than 25 %. Respondent in is SOD has argued that the quantities

have not exceeded more than 25%, but here the contract provided for

variation in quantities, that it may be increased or decreased and as per the

table given above, the Claimant is fully entitled to this claim..

(MR TIWARI TO CLARIFY AS TO THE BASIS OF NEW

RATE REFLECTED IN PAGE-982 OF SOC)

CLAIM NO.5: AMOUNT PAYABLE BEING THE LOSS OF

OVERHEAD AND PROFIT DUE TO IDLING AND NON-

COMPLETION OF THE WORK IN THE SCHEDULE PERIOD.

42
i) The defense of the Respondent with reference to delay

and default being attributable to the Claimant is denied

with reiteration of the SOC and rejoinder made above.

ii) The defense with reference to Claimant’s letter

dtd.16.11.2011 (R-197, Pg-489 of SOD) has misconstrued in

as much as this letter was written as a mitigating measure

in view of the happening of the events well mentioned in

the contract for shifting of milestones. Even same letter

also states that Kharkhoda- Assaudha road length of

about 18.05 Km has not handed over to us due to ROW

problem and on account of hindrances from villagers. It

also records that tree cutting, electric pole pols shifting is

going on at slow pace. Gohana- Sisana road was also

suffered with land disputes. It also records mining

problem due to stay orders from Hon’ble Supreme Court.

iii) The alleged and repetitive reference of letter of the

Claimant dtd.14.05.2012 being not marked, in the SOD,

the Claimant is unable to address as stated above.

iv) The defense that “no one should be given advantage of

his own wrongs” is correct but admittedly the wrong is

partly on account of Respondents default or partly for

happening of compensating events.

v) The defense that “the submission made by the Claimant

cannot be believed that the litigation of Kharkhoda

43
 Asudha Road laid to delay in completion of even the

reduced scope of work” is denied.

vi) The execution of the work in the schedule period of

Rs.51,87,84,021/- and in the extended period of

Rs.19,82,73,559/- does not in any manner absolve the

Respondent from its contractual and legal obligation to

compensate the Claimant in terms of the compensation

events of the contract.

vii) The defense that “there were provisions in the agreement

executed between the parties in respect of variation of the

quantities under the Clause-14.1(c)” is undisputed, but the

same was not given effect.

viii) The defense that “there is no breach on the part of the

Respondent nor the Claimant has been able to establish”,

is denied being evasive with reference to the admitted

documents available in the parties with reference to the

admitted reasons of breach of the Respondent or

otherwise delay on account of compensation events.

ix) Most importantly, the Respondent having not objected to

the quantification part of the Claim No.5 as made by the

Claimant, it has waived its right to seek any defending

averments hereinafter in the line of the claim of the

Claimant or otherwise and the Hon’ble Tribunal may be

pleased to award the amount the compensation.

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CLAIM NO.6: AMOUNT PAYABLE BEING THE LOSS OF

OVERHEAD AND PROFIT DUE TO PROLONGATION OF THE

CONTRACT.

i) The overall defense against Claim No.6 are denied being

beyond the provision of the contract, law of the land and

practice and policy guiding the Road Engineering Work in

India.

ii) The defense with reference to R-198 being letter of the

Claimant dtd.14.05.2012, does not in any manner absolve

the Respondent from the overall first and primary

obligations arising out of the contract.

iii) The reliance to judgment of U.K. in Tele International Card

Company S.A. V/s. Post Office Limited., 2009 EWCA (Civ)

9to the extent of expecting the Claimant to terminate the

contracts on the face of the breaches of the Respondent,

does not help the Respondent for the reasons that Firstly,

the copy of the judgment has not been produced for kind

perusal as to the relevancy and applicability of the same to

the facts and circumstances of the present case. Secondly,

the contract in hand envisages way out by providing

compensation events to the financial benefit of the Claimant

on the event of the breaches by the Respondent in the form

of time extension, price escalation and other additional cost.

Thirdly, the situation to terminate the contract as is

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 provided under Clause-16.2 of the contract had not arisen

and as such the Claimant would have been contractually

and legally blamed had it terminated the contract instead of

continue with the project performance and get the benefit

the compensation events as is provided in the contract

mentioned above. Fourthly, the Claimant was aware of the

provision of Indian Contract Act, U/s.53, 54, 55, 56, 73, 74

and 75 for which only it had continued with the work

instead of terminating. Lastly,the contract in hand being

extendable and not time essence contract, the Claimant’s

opting for termination without the happening of the events

stipulated under Clause-16.2, would have put the Claimant

in the zone of default ultimately.

iv) The defense in Para-“a to d” that “the Claimant has not

provided the details and has claimed lum sum amount does

not help the Respondent as because neither the contract nor

the Indian Contract Act provides for any compliance level

and as token of assistance the Claimant has resorted to

uniformly reliable source of reference for calculating its

entitlement. Moreover, Hon’ble Supreme Court in catena of

cases apart from holding the view that if the contract

providing for compensation or otherwise the Respondent is

in default of the obligation it is onerous from the Hon’ble

Tribunal and Court to allow reasonable

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 compensation/damage applying its discretion and to this

effect production of adequate or inadequate particulars to

support the claim is not material. The Claimant reserves its

right to rely judgments to this effect during the course of the

argument.

v) The defense in Para- “e & f” as to the conduct of the

Claimant with reference to production of actual evidence

on record is not correct in view of the submission made

above and more over had the Engineer or the Respondent

with their fairness determined the compensation in terms of

the compensatory events, they would have relied upon the

same source of reference as relied upon by the Claimant.

vi) The defense in Para- g with reference to violation of

“principle of mitigation” it is stated that the Respondent has

not spelt out as to how and to which effect the Claimant had

violated the principle of mitigation. However, Firstly, the

very act of the Claimant to agree for taking of the work of

the steel bridges and one road after issuance of the taking

over certificate, sufficient enough to prove the mitigating

conduct of the Claimant Secondly,the act of Claimant to

execute work despite the fact for non-payment of amount

due payable as compensation events and huge reduction in

the scope of the work for some items by itself mitigating,

Thirdly,the Claimant completion of the work to the extend

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 of Rs.51 Cr. within the schedule period notwithstanding

various financial, physical and legal issues over and above

inability to handover the site and other

political/administrative decision.

vii) The defense in Para- “h and i“ are denied relying to the

submission made up above, apart from Claimant’s reliance

of judgment from the Courts of the land during the course

of argument.

viii) The defense that the Claim is indirect losses and damage is

out and out evasive on the face of the provision of the

contract, law of the land and practice to the road

Engineering.

CLAIM NO.7: AMOUNT PAYABLE BEING THE LOSS DURING

CONTRACT PERIOD AND EXTENDED PERIOD OF THE

CONTRACT FOR LOSS OF PRODUCTIVITY OF THE PLANT AND

MACHINERIES.

i) The defense as a whole against Claim No.7 is denied being

beyond the provisions of the contract, law of the land and

practice to the Road Engineering.

ii) The reliance to the letter of the Claimant dtd.14.05.2002 does

not help the Respondent and to this effect a Claimant

reiterates its submission already made.

iii) The defense with reference to the time extension for various

milestones is evasive on the face of the provision of the

48
 contract the compensation event and the reasons thereof

being addressed by the Claimant, reviewed and

recommended by the Engineer and approved by the

Employer.

iv) The defense with reference to Respondent’s addressed

many correspondences does not help the Claimant as such

letters have been complied to in field performance and the

same is superseded by the ultimate time extension related

correspondences.

v) The defense that “the Claimant has raised huge blind

claims and he has failed to give proper and complete

details of the claims” is vague as the Respondent has not

specifically pleaded as to which part of the claim are blind

and as to which are the proper and complete details

Respondent requires for accepting the claims.

vi) Most importantly, the Respondent having not objected to

the quantification part of the Claim No.7 as made by the

Claimant, it has waived its right to seek any defending

averments hereinafter in the line of the claim of the

Claimant or otherwise and the Hon’ble Tribunal may be

pleased to award the amount the compensation.

CLAIM NO.8: AMOUNT PAYABLE BEING RENT OF STORAGE

AND WATCH AND WARD FOR TWO YEARS FOR SCRAP OF

COLLAPSED STEEL BRIDGE:

49
 i) The defense in Para-8 that “the work of steel bridge was

under construction on the date of collapse” is out and out

evasive as that time the Claimant had already completed

the bridge proper works except some finishing items

usually done during the defect liability period.

ii) Rest of the defense with reference to the claim being

repetitive the Claimant reiterates its submission already

made above.

iii) The defense that “it was responsibility of the Claimant

during construction period to keep the scrap in its

custody” is not correct and the Respondent is put to strict

proof thereof.

CLAIM NO.9: REIMBURSEMENT OF GST DIFFERENTIAL TAX

ON ACCOUNT OF GST:

i) The defense that “had the Claimant would have completed

the work within the originally prescribed timeor even

during the extended DLP” its liability on account of

indirect tax would have been restricted within 4% does not

help the Respondent as because despite the ready and

willingness of the Claimant the work could not be

completed and ultimately short closed owing to happening

of compensation events.

ii) Since the payment reimbursement of GST to extent of the

amount to be awarded, is statutory cost owing to change in

50
 legislation, over and above the agreed cost, the same

reimbursement is automatic and cannot disputed in any

manner.

CLAIM NO.10: PRESUIT, PENDENT LITE & FUTURE INTEREST

@12% PA ON ALL CLAIMS:

i) The defense that “the Claimant violated the terms and

conditions of the contract, committed defaults and lapses

in the execution of the work” is denied with reiteration of

the SOC and the Rejoinder made above. As such the

Claimant is entitled to be awarded with the interest as

claimed.

ii) Since the Claimant has not objected to the period of interest

and rate of interest as claimed in the respective claims, the

Hon’ble Tribunal may be pleased to award the same.

CLAIM NO.11: COST OF ARBITRATION AND LITIGATION

EXPENSES:

The very attitude/conduct of the Respondent appearing from

the defense itself is sufficient to award the litigation cost.

However, the Claimant will submit the detailed cost memo

before completion of the arbitration proceeding.

51
 The rest of the defense of the Respondent is denied

being not in consonance with the terms of the contract and

the provision of law.

PRAYER

In view of the fact stated above the Hon’ble Tribunal may be pleased to

reject the defense of the Respondent and award the claims as prayed in

the SOC and substantiated through the Rejoinder mentioned above for

which the Claimant as in duty bound shall ever pray.

Date: By the Claimant through

Place:

Authorized Signatory

(AFFIDAVIT OF SRIPAL SINGH)

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