1

IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION

O.M.P. (T) (Comm.) NO. OF 2022

IN THE MATTER OF:

M/S. BCC-MONALISHA (JV) …Petitioner

Versus

Container Corporation of India Limited

…Opp. Party

MASTER INDEX
Sl .no Particulars Pages
1 Index-I
2 Court fees
3 Urgent Application
4 Notice of Motion
5 Petition Under Section-11(6) of
Arbitration and Conciliation, 1996
along with supporting affidavits
6 Statement of Truth
7 Certificate by way of Affidavit under
Order XI Rule 6(3) of Commercial
Court Act, 2015

Sl. no Particulars Pages

1 Index-II
2 Vakalatnama of Petitioner

3 Power of Attorney dated ________

authorizing Mr.__________ to file the
 2

present application on behalf of the

Petitioner

(LIST OF DOCUMENTS FILED BY THE PETITIONER)

Sl.
No.
Document Whether Who is Mode Line of PG
Petitioner in the of Custody
has Power/ Executi
Original on/
or Office
possessi
Copy or
on/ Issuanc
Photocopy
e of
Receipt
control

INDEX-III

Sl.
No.
Document Whether Who is in the Mode of Line PG
Petitioner Power/ Execution/I of
has possession/c ssuance of Custo
Original or ontrol Receipt dy
Office Copy
or
Photocopy

INDEX-III

1
Copy of the Photo Petitioner Petitioner Original
Power of Copy filed along
Attorney with
dtd.30.05.2019 Petition

2 Copy of the Photo Petitioner Petitioner Original

agreement Copy & Opp. & Opp. with
dtd.15.04.2019 Party Party Petitioner
& Opp.
 3

Party

3 Copy of letter Photo Petitioner Petitioner Original

dtd.28.06.2021 Copy to Opp. with
Party Petitioner

4 Copy of the Photo Opp. Opp. Opp.

letter dtd. Copy Party Party to Party
01.07.2021 Petitioner

5 Copy of the Photo Petitioner Petitioner Petitioner

Pleader’s Copy to Opp.
Notice dtd. Party
07.07.2021

6 Copy of the Photo Petitioner Petitioner Petitioner

Pleader’s Copy to Opp.
Notice Party
dtd .19.07.2021

7 Copy of the Photo Opp. Opp. Office

notice dtd. Copy Party Party to Copy with
21.07.2021 Petitioner Opp.
Party

8 Copy of the Photo Office Petitioner Office

letter dtd. Copy Copy with to Opp. Copy with
13.07.2021 Petitioner Party Petitioner

9 Copy of the Photo Opp. Opp. Opp.

notice dtd. Copy Party Party to Party
30.07.2021 Petitioner

10 Copy of the Photo Petitioner Petitioner Petitioner

letter dtd Copy to Opp.
02.08.2021 Party
 4

11 Copy of letter Photo Opp. Opp. Opp.

dtd. 03.08.2021 Copy Party Party to Party
Petitioner

12 Copy of the Photo Opp. Opp. Opp.

letter dtd. Copy Party Party to Party
04.08.2021 Petitioner

13 Copy of the Photo Petitioner Petitioner Petitioner

letter dtd. Copy to Opp.
14.08.2021 Party

14 Copy of the Photo Petitioner Petitioner Office

Notice dtd. Copy to Opp. copy with
06.09.2021 Party Petitioner

15 Copy of the Photo Petitioner Petitioner Office

notice dtd. Copy to Opp. copy with
11.03.2022 Party Petitioner

Filed through

Place: New Delhi

Date:
Sidhant Dwibedi (O/531/2015),
Advocates for petitioner
Add-______________________________
Phone Number-09990118668, 9437180157
Email Id- dkdwibedi.associates@gmail.com
 5
IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION

O.M.P. (T) (Comm.) NO. OF 2022

IN THE MATTER OF:

Sanjay Aggarwal …Petitioner

Versus

XXXXXXXXXXXXXXX
…Respondents
INDEX-1

Sl .no Particulars Pages

1 Index-I
2 Court fees
3 Urgent Application
4 Notice of Motion
5 Petition Under Section-11(6) of
Arbitration and Conciliation, 1996
along with supporting affidavits
6 Statement of Truth
7 Certificate by way of Affidavit under
Order XI Rule 6(3) of Commercial
Court Act, 2015

Filed through

PLACE: New Delhi

Date: Sidhant Dwibedi (O/531/2015),
Advocates for petitioner
Add-_____________________________________
Phone Number-09990118668, 9437180157
Email Id- dkdwibedi.associates@gmail.com
 6

IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION

O.M.P. (T) (Comm.) NO. OF 2022

IN THE MATTER OF:

Sanjay Aggarwal (JV) …Petitioner

Versus

XXXXXXXXXXXXXXXXXXXXXXX
…Opp. Party
URGENT APPLICATION

The Registrar, High Court of Delhi

Sher Shah Road, New Delhi-110003.

Sir,

It is requested that the accompanying Arbitration Petition be

listed on an urgent basis. The ground of urgency is:

“____________________________”

Yours Faithfully

Filed through

PLACE: New Delhi

Date:

Sidhant Dwibedi (O/531/2015),

Advocates for Petitioner
Add-______________________________
Phone Number-09990118668, 9437180157
Email Id- dkdwibedi.associates@gmail.com
 7

IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION

O.M.P. (T) (Comm.) NO. OF 2022

IN THE MATTER OF:

Sanjay Aggarwal …Petitioner

Versus

XXXXXXXXXXXXXXXXXXXXXXXXX
…Opp. Party

NOTICE OF MOTION

Sir,

Take notice that the accompanying Petition is likely to be

listed before the Hon’ble Court on ____________ or on such

other day thereafter, as may be fixed by this Hon’ble Court.

Please take notice accordingly.

Filed through

PLACE: New Delhi

Date:
Sidhant Dwibedi (O/531/2015),
Advocates for Petitioner
Add-______________________________________
Phone Number- 9437180157
Email Id- dkdwibedi.associates@gmail.com
 8

SYNOPSIS
The present Petition under Section 11(6) of the Arbitration and
Conciliation Act 1996 is being preferred for the appointment of an
arbitrator on behalf of the Opp. Party as it has failed to appoint its
nominee Arbitrator in terms of the Contract Agreement.
That, the Petitioner being the finest bidder was awarded with the
work “Earthwork, Construction of CC, Block Pavement Approach
Road, P-way Track work, Boundary Wall Pre-Engineered
Warehouse, Admin Building and Other Allied works for
development of MMLP At-Jajpur Road, Jajpur, Odisha” arising
out of the Agreement No. CON/EP/MMLP Jajpur/Civil & Electrical
works/2018, dtd.15.04.2019. The petitioner then immediately began
executing the work, mobilizing its workforce and machinery and
taking all necessary precautions; nonetheless, certain defaults that
were not attributable to the Petitioner resulted in unnecessary delay
and the execution of the work suffered as a result.
That, the Petitioner approached the Opp. Party and stated that it has
become impossible to complete the work due to the steep rise in the
rates of various components because of the COVID-19 pandemic,
and further requested an extension of time until 31.12.2021, with the
benefit of price escalation with regard to the value of works
completed after the scheduled period of 18 months and the
remainder of the work remaining to be executed; or to close the
contract under Clause-61 of GCC of the agreement.
That, while the Opp. Party agreed that the obstacles were at their
fault but still denied all of the Petitioner's demands in its letter dtd.
01.07.2021. Finding no other option, the Petitioner intimated its
intention to terminate the contract in its pleader's notice dated
07.07.2021, unless a favourable decision on the mitigating financial
demands was reached within 15 days of receipt of the said letter.
After the period of 15 days, the Petitioner restated the
 9
abovementioned proposals in the interest of the work vide its
Pleader's notice dtd.19.07.2021.
That the Opp.Party, in its letter dtd.12.07.2021, issued a 7days notice
directing the Petitioner to show cause as to why action under Clause-
62 of the GCC should not be conducted against him. The Petitioner
promptly responded to the abovementioned notice vide letter dtd
23.07.2021 and further again mentioned that it has cancelled the
contract in the abovementioned letter due to the Opp. Party's
complete lack of concern. The petitioner also stated that any
subsequent terminations under Clause-62 of the GCC would be in
violation of Sections 53, 54, 55, 73, 74, and 75 under Indian Contract
Act, 1872.
That, though the Petitioner had already terminated the contract vide
its letter dtd.23.07.2021, the Opp. Party forwarded a 48-hour notice
vide letter dtd.30.07.2021 informing its intention to terminate the
contract. The Petitioner stated in its reply dtd.02.08.2021 that it is
unable to take any action towards the completion of the project since
the contract has already been terminated and it is no longer able to
do so. However, without taking into account the Petitioner's
representations in different letters, the Opp. Party again terminated
the contract as per Clause-62 of the GCC in its letter dtd. 03.08.2021
and the Opp. Party also informed the Petitioner by letter dtd.
04.08.2021 that it has urged the Branch Manager to encash the Bank
Guarantee given by the Petitioner. Despite the fact that the Petitioner
had addressed the Hon'ble District Judge Khurdha under Section 9 of
the Arbitration and Conciliation Act, 1996 (ARBP No. 25/2021) and
received a favourable Order from the Hon'ble District Judge for a
stay of invocation. Despite the fact that the Hon'ble District Judge's
Order was personally communicated to the Opp. Party on 11.08.2021,
as well as vide letter dtd. 14.08..2021, the Opp. Party took no action in
response to the aforementioned ruling.
That, in light of the foregoing, the Petitioner vide letter dtd.
09.06.2021 requested the Opp. Party to take mitigating measures and
allow the Petitioner to complete the work. The Petitioner also
requested in the said letter that if the Opp. Party fails to take such
 10
mitigating steps, the said letter shall be construed as a letter under
Clause-63 of the GCC for the purpose of resolving the disputes, and
that if the Opp. Parties fail to resolve the disputes within 120 days,
the Petitioner will have no choice but to refer the disputes to a duly
constituted Arbitration Tribunal.
However, the Opp. Party did not take any action in appointing the
Arbitration Tribunal, which forced the Petitioner to issue a another
Pleader's Notice dtd.11.03.2022, seeking the Opp. Party to appoint an
Arbitrator in accordance with the Contractual Conditions. However,
irrespective of such intimation and subsequent reminders the Opp.
Party has failed to take any step towards appointment of Arbitrator.
Due to such inordinate delay, the Petitioner is being constrained file
this present petition.
LIST OF DATES & EVENTS

15.04.2019 The Petitioner and the Opp. Party executed an

agreement bearing dtd. 15.04.2019 in relation

with the work.

30.05.2019 The Petitioner is being represented by its

Authorized Signatory vide Power of Attorney

dtd. 30.05.2019.
2019-2021 The Petitioner faced various hindrances during

this period which were duly intimated to the

Opp. Party.
28.06.2021 The Petitioner informed the Opp. Party that it

has become impossible to continue the work and

further requested for extension of time till

31.12.2021.
01.07.2021 The Opp. Party denied to comply with the

Petitioner’s requests.
 11

07.07.2021 The Petitioner sent its Pleader’s Notice

intimating its intention to terminate the contract.

19.07.2021 The Petitioner sent its Pleader’s Notice again

informing to reiterate the said proposals in the

interest of the work.

21.07.2021 The Opp. Party issued a 7-Days Notice directing

to show cause as to why action as per Clause-62

of the GCC shall not be taken against the

Petitioner.
13.07.2021 The Petitioner replied to the 7-Days Notice of the

Opp. Party and also terminated the contract.

30.07.2021 The Opp. Party issued a 48-hoursnotice

intimating its intention to terminate the contract.

02.08.2021 The Petitioner informed its inability to continue

the work as the contract has already been

terminated.
03.08.2021 The Opp. Party terminated the contract under

Clause-62 of the GCC.

04.08.2021 The Opp. Party informed the Petitioner that it

has directed the Branch Manager to encash the

Bank Guarantee.
14.08.2021 The Petitioner informed the Opp. Party about the

favourable order passed by the Hon’ble District

Judge in favour of the Petitioner for stay of

invocation.
06.09.2021 The Petitioner requested the Opp. Party to take
 12

mitigating steps and allow to execute the work

and if the Opp. Party fails to do so then the

Petitioner will have no choice but to refer the

dispute to a duly constituted Arbitration

Tribunal.
11.03.2022 The Petitioner requested the Opp. Party to

appoint an Arbitrator as per the contractual

conditions.
 13

IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION
O.M.P. (T) (Comm.) NO. OF 2022

IN THE MATTER OF:

Sanjay Aggarwal …Petitioner

Versus

XXXXXXXXXXXXXXXXXXXXXXX
…Opp. Party
MEMO OF PARTIES

Sanjay Aggaarwal
Aged About __________, S/O__________________,
addressed at 35-36,First Floor, Millennium Plaza,
Raipur, Chhattisgarh.

…..Petitioner
-Versus-

XXXXXXXXXXXXXXXXXXXXXXXXXX

Represented by its Chairman-cum-Managing

Director, At-CONCOR Bhawan,C-3, Mathura Road,
Opposite Apollo Hospital, New Delhi - 110 076.
 14
IN THE HIGH COURT OF DELHI AT NEW DELHI

ORDINARY CIVIL ORGINAL JURISDICTION

O.M.P. (T) (Comm.) NO. ____________ OF 2022

IN THE MATTER OF:

Sanjay Aggarwal …Petitioner

Versus

XXXXXXXXXXXXXXXXXXXXXXXXXXXX
…Opp. Party

PETITION ON BEHALF OF THE PETITIONER UNDER

SECTION 11(6) OF THE ARBITRATION AND

CONCILIATION ACT, 1996.

Most respectfully showeth:

1. That, the Petitioner in this petition seeks to invoke the

original jurisdiction of this Hon’ble Court under Section-

11(6) of the Arbitration & Conciliation Act, 1996

(hereinafter referred to as ‘the Act’) for appointment of

impartial and independent arbitrator for adjudication of

the dispute between the Petitioner and the Opp. Parties

arising out of a agreement of Agreement No. 1/EPC of

2015-16 for the work “Construction of Bypass around

Gumla Town connecting NH-73 & NH-23 (R-G) in the

 15

state of Jharkhand under EPC mode(KM 0.00 to KM

12.842) Job No: - 078 & 23-JHR-2013-14- 229 dated 15. 12

.2015.”

2. That, the principal agreement that was entered upon by the

parties was terminated by the Opposite parties, later on it

was challenged by the petitioner in Hon’ble High Court of

Delhi against the petition no. W.P(c) 11256/2019&CM

46351/2019 and through that petition Hon’ble High Court

of Delhi revoked the termination. Thereafter

supplementary agreement was executed between the

Petitioner and the Opp. parties dtd. 16.01.2020 with revised

work programme till 31.03.2021.

3. That, the Petitioner and The Opp. Party had entered into

an agreement where from the present lis has arisen and

hence necessary party to the present petition. This Hon’ble

Court has been vested with jurisdiction as per Article-26 of

EPC agreement read with sec 11 (6) of The Arbitration and

Conciliation Act.

4. That, the Petitioner exclusively for the execution of the

present work. With such intention in mind, the Petitioner

participated in the tender process floated for the present

work. The Petitioner had dropped its most effective bid

and was declared as the lowest technically successful

 16

bidder and an agreement bearing no. 1/EPC of 2015-16 dtd.

15.12.2015 was signed between the parties. The agreement

provided that the parties agreed to abide by the

Engineering, Procurement and Construction which

provided for Arbitration at Clause-26. The said clause is

quoted herewith for perusal of this Hon’ble Court:

“XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX”
.
Copy of the agreement dtd.15.12.2015 is annexed herewith
as Annexure-P/2

5. That, the petitioner after submitting revised work

programme upto 31.03.2021, as per the supplementary

agreement started mobilizing its manpower and

machineries and got actively engaged in execution of the

work, but due to various defaults which were not

attributable to the petitioner resulted in unnecessary

delay and proper execution of the work was hampered.

The reasons leading to such delay in execution of the

work are detailed hereinunder for examination of this

Hon’ble Court:

A. Termination of the principal contract entered

upon by the parties on 15.12.2015 which was later

 17

on challenged, such action of the opposite parties

relatively hampered the execution of the work.

B. Delay in approval of the EOTs requested by the

petitioner.

C.

That, the petitioner thereafter immediately proceeded with the

execution of the work duly mobilizing its manpower and

machineries and took all the sturdy measures for the

execution of the work; but due to various defaults which

were no way attributable to the Petitioner resulted in

unnecessary delay and execution of the work suffered. The

reasons leading to such defaults and delay in execution of

the work are detailed hereunder for perusal of this Hon’ble

Court:

A. Considerable delay in demarcation of notified

area by the Opp. Party. The Opp. Party has been

intimated of such categorical failure in its

obligation; but no action as of yet has been taken.

B. Delay in issuance of working drawings and

subsequent revision of the said drawings.

 18

C. Restrictions imposed by local administration on

quarrying and transportation of minor minerals

(morrum).

D. Though, the Opp. Party has clamped the

responsibility of vetting the drawing of the

warehouse from IIT; there was considerable delay

on the part of the said IIT in vetting of the said

designs.

E. Unusual delay on account of delay in payment of

running bills and the consequential working

capital crisis.

F. Devastating weather conditions like tropical

cyclones, cyclonic depression, incessant rainfalls,

etc.

G. Devastating effect of covid-19 waves which

seriously killed the pace of the work due to

lockdown/shutdown being issued by the local

administration for restricting the movement of

man and machineries. Even post such

waves/resurgence; there was scarcity of labour

owing to the fear of spreading of Covid-19 virus.

 19

H. Moreover, due to sizeable variation in the scope

of works due to faulty DPR of the consultant

enhancing the work value from Rs. 28,07,02,142/-

to Rs. 30,78,24,114.79/- on dtd. 09.03.2020 and

finally Rs. 33,34,28,470.54/- on dtd. 28.04.2021. It is

pertinent to state here that as the agreement did

not provide any clause for provision of price

escalation; the said additional work was allotted

to the petitioner at the rates which were in

subsistence during the time the petitioner had

dropped its bid for the said project.

5. That, suffering from the above hindrances the Petitioner

informed the Opp. Party vide letter dated 28.06.2021 that it

has become impossible to complete the work due to the

steep rise in the rates of various components as a result of

the COVID-19 pandemic, which is why the Petitioner

further requested an extension of time until 31.12.2021 with

the benefit of price escalation with regard to the value of

works completed after the scheduled period of 18 months

and the rest of the work remaining to be executed; or to

close the contract under clause-61 of GCC of the agreement

 20

treating the performance as impossible owing to the effect

of COVID-19 pandemic/reasons attributable to the Opp.

Party.

Copy of letter dtd.28.06.2021 is annexed herewith as

Annexure-P/3

6. That, the Opp. Party admitted that the hindrances were on

their part, as per the agreement it was imperative to give

access to the entire site but vide letter dtd. 01.07.2021 the

Opp. Party denied all the above mentioned requests made

by the Petitioner. Finding no alternative; the Petitioner vide

its pleader’s notice dtd. 07.07.2021 intimated its intention to

terminate and also stated that unless a favourable decision

on the mitigating financial demands are taken within 15

days of receipt of the said letter; it shall have no other

option than to terminate the contract. The Petitioner after

awaiting a period of fifteen days again vide its Pleader’s

 21

notice dtd.19.07.2021 reiterated the said proposals in the

interest of the work.

Copy of letter dtd.01.07.2021, 07.07.2021 and 19.07.2021 is

annexed herewith as Annexure-P/4 Series

7. That, the Opp. Party vide its letter 21.07.2021 issued a 7

(Seven) days notice directing to show cause as to why

action as per Clause-62 of the GCC shall not be taken

against the Petitioner. The Petitioner immediately vide its

letter dtd.23.07.2021 replied to the said notice and therein

stated that when the petitioner was trying to take

mitigating steps for the interest of the work the Opp. Party

did not cooperate. Finding no alternative and utter lack of

concern at the hands of the Opp. Party, the petitioner vide

the said letter terminated the contract. The petitioner also

intimated therein that any further termination undertaken

under Clause-62 of the GCC, will be in violation of Section-

53, 54, 55, 73, 74 and 75 of the Indian Contract Act, 1872.
 22

Copy of notice dtd.21.07.2021 and 23.07.2021 is annexed

herewith as Annexure-P/5 Series

8. That, when the petitioner had already terminated the

contract as per letter dtd.23.07.2021; the Opp. Party with a

malafide intention of displaying its authoritarianism issued

a 48 hours notice vide letter dtd.30.07.2021 intimating its

intention to terminate the contract. The petitioner vide its

reply dtd.02.08.2021 expressed its inability to take up any

action towards execution of the work as the contract has

already been terminated and it cannot continue with the

work anymore. But, without considering the above

submissions of the Petitioner in various letters above

stated; the Opp. Party vide its letter dtd.03.08.2021

terminated the contract under Clause-62 of the GCC.

Copy of the notice dtd.30.07.2021, reply dtd.02.08.2021 and

letter dtd.03.08.2021is annexed herewith as Annexure-P/6

Series
 23

9. That, the Petitioner had already terminated the contract

vide its letter dtd. 23.07.2021 but the Opp. Party

fraudulently issued the termination notice once again on

dtd. 03.08.2021. When the matter stood thus; the Opp.

Party vide its letter dtd. 04.08.2021 intimated the Petitioner

that it has requested the Branch Manager to

encash/forfeit/invoke the Bank Guarantee submitted by the

Petitioner. Though the Petitioner had approached the

Hon’ble District Judge Khurdha, under Section-9 of the

Arbitration and Conciliation Act, 1996 vide ARBP No.

____/2021 and though a favourable order in favour of the

Petitioner for stay of Invocation was passed by the

Hon’ble District Judge, but before the Petitioner could

procure the certified copy of the said order, the bank

encashed the Bank Guarantee without considering the

fraudulent actions, at the part of the Opp. Party. Though

such order of the Hon’ble District Judge has been intimated

to the Opp. Party personally on 11.08.2021 and also vide

letter dtd.14.08.2021; but no action whatsoever pursuant to

the said order was taken by the Opp. Party.

 24

A Copy of the letter dtd.04.08.2021 is annexed herewith as

Annexure-P/7

A Copy of the letter dtd. 14.08.2021 is annexed herewith as

Annexure-P/8

10. That, when the matter stood thus; the Petitioner vide letter

its Pleader’s Notice dtd.06.09.2021; requested the Opp.

Party to take mitigating steps and allow the petitioner to

execute the work. The Petitioner also requested vide the

said letter, that if the Opp. Party fails to take such

mitigating steps, then the said letter shall be constituted as

a letter under Clause-63 of the GCC for resolving the

disputes and on failure of such Opp. Parties in resolving

the disputes within 120 days, the petitioner would have no

liberty than to refer the disputes to a duly constituted

Arbitration Tribunal. But irrespective of receipt of the letter

as well as conclusion of 120 days, no action whatsoever has

been taken by the Opp. Party in appointing the Arbitration

Tribunal, thereby forcing the petition to issue another

Pleader’s Notice dtd.11.03.2022; requesting the Opp. Party

 25

to appoint an Arbitrator as per the Contractual Conditions.

The petitioner therein thoroughly complied all the rigours

of Clause-34 of the Special Conditions of Contract, and

hence, there was no further impediment in appointing an

independent and impartial arbitrator as per the Arbitration

Clause and as per the Arbitration and Conciliation Act,

1996. But irrespective of such reference and irrespective of

receipt of the said notice, no action with regard to the same

has been taken by the Opp. Party. The said clause is quoted

herewith for perusal of this Hon’ble Court:

“34.0 CLAIMS

34.1 The provision of Clause 63 & 64 of General

Conditions of contract will be applicable only for

settlement of claims or disputes between the parties for

value less than or equal to 20% of the value of the contract

and when claim or disputes are of value more than 20% of

the value of the contract, provision of clause 63 & 64 and

other relevant clauses of the General Conditions of

 26

contract will not be applicable and arbitration will not be

remedy for settlement of such disputes.

34.2 The contractor shall not be entitled to ask for

reference to Arbitrator before the completion of the work

assigned to him under this contract. The contractor shall

seek reference to arbitration to settle the disputes only once

within the ambit of condition mentioned above.

34.3 The contractor shall not be entitled to make any

claim whatsoever against the CONCOR under or by

virtue of or arising out of this contract, nor shall the

CONCOR entertain or consider any such claim if made by

the contractor, after he shall sign a “NO CLAIM

CERTIFICATE” in favour of the CONCOR, in such a

form as shall be required by the CONCOR, after the works

are finally measured up. The contractor shall be debarred

from disputing the correctness of the items covered by “No

Claim Certificate” or demanding a reference to Arbitration

in respect thereof.

34.4 The successful tenderer/s contractor/s shall put up

their claims as per clause 43 of the General Conditions of

contract during the progress of work and not after

 27

completion of the work. All such claims and disputes

shallbe settled promptly during the progress of the work.

Apart from the decisions given at various levels the final

authority for giving the decisions on claims and disputes

put up by the contractor/s shall be the ED (Engg)/ Group

Manager (Engg)/ CONCOR only and the decisions

regarding measurements, method of measurements

meaning and intent and interpretation of specifications of

the contract given and made by the ED (Engg)/ Group

General Manager (Engg.)/CONCOR shall be final and

binding on the contractor/s. Such decisions by the ED

(Engg.)/Group General Manager (Engg.)/CONCOR shall

be treated as “Excepted Matters” in terms and Condition

No.63 of the General conditions of the contract. These

Special Conditions shall prevail over existing Clause 63 &

64 of the General Conditions of contract other than

provisions relating to “Excepted Matters”.

34.5 In case of any dispute/Arbitration, the place/seat of

Arbitration shall be at Delhi and the courts in Delhi shall

have the exclusive Jurisdiction.”

 28

Copy of letter dtd.06.09.2021 is annexed herewith as

Annexure-P/9

Copy of letter dtd.11.03.2022 is annexed herewith as

Annexure-P/10

11. That, despite persistent requests of the Petitioner to

appoint Arbitrator/Arbitrators according to Section-11(6) of

the Arbitration and Conciliation Act, 1996 the Opp. Party

failed to constitute the Arbitration Tribunal. The Petitioner

therefore has no other remedy but to approach this

Hon’ble Court to appoint fair and impartial

Arbitrator/Arbitrators not connected with Opp. Party in

any manner keeping in view the aforesaid facts and

circumstances of the matter.

PRAYER

In view of the foregoing facts and circumstances it is most

respectfully prayed that this Hon’ble Court may pleased to:

 29
A. To admit the petition

B. To issue notice calling upon the Respondents to show

cause as to why an arbitrator shall not be appointed on

behalf of the Respondent No.1

C. And if the Respondents fail to show cause or show

adequate cause; appoint an arbitrator on behalf of the

Respondent as per Section-11(6) of the Arbitration and

Conciliation Act, 1996.

D. Pass any other order and / or grant further relief to the

Petitioner as this Hon’ble Court may deem fit and proper

in the circumstances of the present case.

PETITIONER THROUGH

Sidhant Dwibedi (O/531/2015), Advocates

for petitioner, 101-A.K Sen Block,
Supreme Court, New Delhi-1, Phone
Number-09990118668, 9437180157, Email
Id- dkdwibedi.associates@gmail.com

New Delhi

Date:

VERIFICATION:

I, _______________________, on behalf of the Petitioner

Company, verify at _____________ on this ________day of

 30
________________________________ that the contents of

paragraphs 1 to _________ of the petition are true and correct to

the best of my knowledge and belief and those of paragraphs

_________ to _______________ are based on legal advice and

believed to be correct.

PETITIONER