IN THE MATTER OF HIGH COURT AT NEW DELHI

O.M.P NO. 149 OF 2004

IN THE MATTER OF :

M/S Gas Authority of India Ltd. ……Petitioner

VERSUS

M/s. Bansal Cotractors (India) Limited ……Respondent

REJOINDER ON BEHALF OF THE PETITIONER

REPLY TO PRELIMINARY OBJECTIONS:-

(1) The contents of the reply to preliminary objections are admitted

to the extent borne out from documents on record and such of the

contents as are not borne out from the documents on record are

denied. It is submitted that the objection petition does not barred

by any limitations as it is well within the time. It is pertinent to

mention here that the petitioner filed objection petition on 11th

November, 2003 that is within three months of the delivery of

award (12th August, 2003). After that Registry of this Hon Court

raised objection, and in the process of removing the objection the

petition was registered somewhere in February. Hence, it is stated

that it was not the fault of petitioner in filing the petition hence not

liable to be dismissed on this ground. Rest of contents of the

preliminary objection are misconceived, wrong hence denied.

PARAWISE REPLY

1.3 The contents of para 1 to 3 of the petition having been

admitted by the respondent in the corresponding para of the

Reply, no further response thereto is called for from the

Petitioner.

4. The contents of para 4 of the petition are reiterated and

reaffirmed. The contents of para 4 of the Reply to the extent

the same are contrary to or inconsistent with the contents of

corresponding para of petition are denied being incorrect and

misconceived. It is further stated here that the Respondent

has failed to complete the work within the schedule time and

actually completed the work much after the schedule date.

The Respondent requested for extension of time on various

grounds which was scrutinized in the light of the various

contractual provisions and the Respondent came to the

conclusion that delay of 111 days was attributable to the

Respondent. Accordingly the final bill was prepared with

imposition of penalty for the above delay.

It is also submitted that petitioner wrote several time to

Respondent about the delay. The petitioner was time and again

informed the respondent about the delay by several letters.

 The petitioner would like to submit the following documents

enclosed herewith in support of their contention:

Exhibit-R26: RRA’s letter dated 15.04.96 stating that the

progress at site is very slow due to

deployment of less manpower.

Exhbit-R-27: RRA’s letter dated 11.05.96 regarding not

arranging the resources at site for starting-up

the work even after subsequent lapse of time.

Exhibit-R28: RRA’s letter 24.10.96 stating that progress at

site is stand still. Delay at the risk & cost of the

Claimant.

Exhibit-R-29: MOM dated 28.11.96 regarding non fulfillment

of agreed commitment with respect to timely

completion of work.

Exhibit-R-30: GAIL’s letter dated 13.11.96 regarding non

fulfillment of agreed commitment with respect

to timely completion of work.

Exhibit-R-31: GAIL’S letter dated 29.11.96 regarding very

slow progress of the work and warning to the

Claimant enable to complete the work as per

schedule.

Exhibit-R-32: MOM dated 30.12.96, Respondent pointed out

that as against schedule 65% progress,

only30% achieved at site. Claimant was

 requested to submit micro level planning of

completion of work.

Exhibit-R-33: GAIL’s letter dated 15.01.97 intimating the

Claimant that 1 1/5 month is left to become

schedule period over but many jobs are yet to

be completed.

Exhibit-R-34: GAIL’s letter dated 20.01.97 regarding very

slow progress despite of reminders to the

Claimant.

Exhibit-R-35: RRA’s letter dated 01.04.97 regarding

informing Claimant that only 2 days left for

schedule completion time and lot of work is left

over.

Exhibit-R-36: RRA’s letter dated 25.04.97 regarding

availability hindrance free site for carrying out

the speedy work.

Exhibit-R-37: RRA’s letter dated 08.07.97 regarding not

completing the work due to various reasons.

Exhibit-R-38: GAIL’s letter dated 22.12.99 regarding

intimating the Claimant for outcome of

approval of the Time Extension Case.

 The details of number of days of delay which have been

accounted for by the Respondent in arriving at the number of

days delay are as follows:

S.No. Reason for delay Extension granted

by Respondent
1. Shifting of site and area grading 72 days

work.
2. Non availability of site for out 63 days

door courts.
3. Execution of extra items. 26 days
4. Transporters strike 12 days
5. Parliament election 07 days
Total 180 days

Total days from schedule date completion to actual date of

completion (04.04.97 to 20.01.98 = 291 days.

Delay on account of Claimant = 91 – 180 = 111 days = 16

weeks.

LD Amount @ 5% per week = 8% OF THE Contract value =

Rs.19,89,306/-

5. The contents of para 5 of the reply are wrong,misconceived

hence denied. it is specifically denied that it is the petitioner

only who appointed the sole arbitrator,for the Arbitration but,

in fact it is appointed by consent of both the parties. It is

pertinent to mention here that Vide letter dated 27th

September, 2000 the petitioner sent a list of arbitrators to the

respondents who were nominated/approved by appointing

authority and requested to select any one out of the three

arbitrators and communicated to the petitioner. Accordingly,

vide letter dated 16.10.2000 the Respondent conveyed his

choice to petitioner the name of Mr. Harish Chandra ® D.G.

CPWD & ex-Member, UPSC as sole Arbitrator for the case

and vide letter dated 19.10.2000, Shri Harish Chandra

was appointed as sole arbitrator, to arbitrate upon the

disputes inter- se the parties

6.7 The contents of para 6 &7 of the petition having been

admitted by the Respondent in the corresponding para of

the Reply, no further response thereto is called for from

the Petitioner.

8. The contents of para 8 of the petition are reiterated and

reaffirmed. The contents of para 8 of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied

being incorrect and misconceived. It is submitted that the

petitioner vide application dated 30.3.2001 raised

objection related to maintain ability of Arbitral

Proceedings as preliminary objections by moving an

application before Ld. Sole arbitrator in which the

petitioner had mentioned that the respondent already

issued “No Demand Certificate “ upon full and final

settlement of all the accounts and receipt of final

 payment. Hence the question of raising any kind of

dispute with regard to any payment does not arise.

9. The contents of para 9 of the petition are reiterated and

reaffirmed. The contents of para 9 of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied

being incorrect and misconceived.

10. The contents of para 10 of the petition are reiterated and

reaffirmed. The contents of para 10 of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied

being incorrect and misconceived. It is further submitted

that vide detailed reply dated 18 December, 2001 the

petitioner does not requested the Ld. Arbitrator to

consider the “No Demand Certificate” dated 14.9.99 in

the award, but to consider the “No Demand Certificate”

dated 14.9.99 for challenging the maintainability of the

Arbitral proceeding. It is respectfully submitted that once

the contract concludes upon full and final settlement of all

accounts and receipt of final payment by the contractor,

no dispute can arise in law. Further, the payment having

been received without any protest recorded or any

reservation made out in this regard, the question of any

‘dispute’ or ‘differences’ arising does not arise. The

 contractor unconditionally and without any reservation or

protest received the full and final payment on settlement

of all the pending accounts and has specifically stated so

in the “No Demand Certificate” issued in this regard by

him. Therefore, the disputes stated in the statement of

claims are not arbitrable.

11. The contents of para 11 of the petition are reiterated and

reaffirmed. The contents of para 11 of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied

being incorrect and misconceived. It is specifically denied

that the Award dated 11th August,2003 is based on the

reasons and findings of facts purely based on pleadings,

evidences, documents and arguments produced by both

the parties and such award was based on factual matrix

and interpretation of the contract clause.It is submitted

that the Ld. Arbitrator does not consider the No claim

certificate as the full and final settlement which was

issued by the respondent on full and final payment.The

ld. Arbitrator while rendering a finding on No claim

Certificate has acted in a patently illegal manner.

12.14. The contents of para 12 to 14 of the petition are

reiterated and reaffirmed. The contents of para 12 to 14

 of the Reply to the extent the same are contrary to or

inconsistent with the contents of corresponding para of

petition are denied being incorrect and misconceived.

REPLY TO OBJECTION ON GROUNDS

A. The contents of grounds of para A of the petition are reiterated

and reaffirmed. The contents of para A of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived.

B. The contents of grounds of para B of the petition are reiterated

and reaffirmed. The contents of para B of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived. The contents of Para 10 of the

rejoinder are reiterated and reaffirmed for the reply of this para.

C. The contents of grounds of para C of the petition are reiterated

and reaffirmed. The contents of para C of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived. It is further submitted that

Respondent had never raised any objection in his counter claim

submitted before ld. sole Arbitrator that the Respondent signed

 No Claim Certificate under pressure, coercion and undue

influence of the petitioner.

D. The contents of ground of para D of the petition are reiterated

and reaffirmed. The contents of para D of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived. Rest of the paras need no reply as

it is repetition of the earlier paras.

E. The contents of ground of para E of the petition are reiterated

and reaffirmed. The contents of para E of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived. Rest of the paras need no reply as

it is repetition of the earlier paras.

F. The contents of ground of para F of the petition are reiterated

and reaffirmed. The contents of para F of the Reply to the

extent the same are contrary to or inconsistent with the

contents of corresponding para of petition are denied being

incorrect and misconceived. It is submitted that no claim

certificate is one of the essential documents for release of

payment of final bill and the language of the No claim certificate

is very much clear about its contents which is given below for

the sake of convenience .

Quote

NO DEMAND CERTIFICATE

Date: 14.1.1999

Received the sum of Rs.8,68,551/- (Rupees Eight Lacs Sixty

Eight Thousand Five Hundred and Fifty One Only) in full and

final settlement of all the payments due to us for construction of

Club Building and Shopping Complex at UPPC Nagar District

Etawah, UP executed by us under the contract agreement

between us and GAIL including all amounts payable to us as

per the agreement we hereby unconditionally and without any

reservation whatsoever certify that with this payment we shall

have no claim whatsoever description. On any account

whatsoever from GAIL against the aforesaid job executed by

us. We further declare unequivocally that with this payment we

have received all the amounts payable to us and have no

dispute of any description whatsoever regarding the amount

worked out and payable to us and the amounts received by us

and that we shall be continued to be bound by the terms and

conditions of the agreement as regards the performance of the

contract.
 Unquote

It reveal that the said Certificate issued by the respondent after

having received the final payment which was released after

processing of the final bill. The language of the No claim

certificate is explicit and leaves no doubt in the mind of the

claimant on its implications.

G. The contents of para G of the reply are wrong,misconceived

hence denied.It is specifically denied that the petitioner have

waived their rights to question of On the very first instance

Petitioner raised objection for the maintainability of Arbitration

Proceeding.

H. The contents of para H of the petition are reiterated and

reaffirmed. The contents of para H of the Reply to the extent

the same are contrary to or inconsistent with the contents of

corresponding para of petition are denied being incorrect and

misconceived.

I. The contents of para I of the petition are reiterated and

reaffirmed. The contents of para I of the Reply to the extent the

same are contrary to or inconsistent with the contents of

corresponding para of petition are denied being incorrect and

misconceived.It ispretionent to mention here that as per the

clause 80.0 and 80.2,” the time period allowed for carrying out
defects works is about one month and if such defect be not

remedied within a reasonable time the owner may proceed to

do the work at contractor’s risk and expense and deduct from

the final bill such amount as may be decided by the owner” and

as per the respondent saying neither the respondent nor the

Ld. Arbitrator are entitled to deviate from the express terms of

the contract.It is further submitted that during progress of the

work, the defects were pointed out by the petitioner to the

respondent time to time. They have not attended some of the

defects, even though those were within their scope of the work.

Accordingly, the suitable deductions have been made in the

final bill and the same was accepted by the respondent also.

Exhibit-R4: RRA’s letter dated 23.06.97 regarding

forwarding the checklist to the claimant (R4/1

to R/4/10).

Exhibit-R5: RRA’s letter dated 27.10.97 regarding the

intimating the claimant for using the teak wood

etc. in the wood work item.

Exhibit-R6: RRA’s letter dated 07.02.98 showing the

shortcoming of the work (R6/1 to R6/2).

Exhibit-R7: RRA’s letter dated 25.05.98 regarding not

attending the checklist points by the Claimants

despite of the several request Notice to get the

same done at the risk & cost of the Claimant.

 Exhibit-R8: GAIL’s letter dated 25.05.98 detailing the

various defect not attended by the claimant.

Exhibit-R9: RRA’s letter dated 08.06.98 regarding the

checklist not being attended by the Claimant

with the approx. cost thereof (R9/1 to R9/2).

Exhibit-R10: Joint statement for deduction against

shortcoming observed in the work for an

amount of Rs.85,904/-.

Exhibit-R11: GAIL’s letter dated 02.02.99 reminder for

attending DLP.

J. The contents of Para J of the petition are reiterated and

reaffirmed. The contents of Para J of the Reply to the extent the

same are contrary to or inconsistent with the contents of

corresponding Para of petition are denied being incorrect and

misconceived. During execution of the work, certain

shortcomings were observed in the building which was

communicated to the Claimant but they have not attended the

same. Before taking over the building finally, they were again

communicated to attend the shortcomings which were

necessarily required to be attended for functional point of view

but again Claimant did not take any positive action for attending

the same. Respondent got the shortcomings attended at the

risk and cost of the Claimant as per the terms of the Contract.
Petitioner would like mention the following documents enclosed

here-in-with the reply of the petitioner herein before the

ld.Arbitrator in support of their contention.

Exhibit-R4: RRA’s letter dated 23.06.97 regarding

forwarding the checklist to the claimant (R4/1

to R/4/10).

Exhibit-R5: RRA’s letter dated 27.10.97 regarding the

intimating the claimant for using the teak wood

etc. in the wood work item.

Exhibit-R6: RRA’s letter dated 07.02.98 showing the

shortcoming of the work (R6/1 to R6/2).

Exhibit-R7: RRA’s letter dated 25.05.98 regarding not

attending the checklist points by the Claimants

despite of the several request Notice to get the

same done at the risk & cost of the Claimant.

Exhibit-R8: GAIL’s letter dated 25.05.98 detailing the

various defect not attended by the claimant.

Exhibit-R9: RRA’s letter dated 08.06.98 regarding the

checklist not being attended by the Claimant

with the approx. cost thereof (R9/1 to R9/2).

Exhibit-R10: Joint statement for deduction against

shortcoming observed in the work for an

amount of Rs.85,904/-.
 Exhibit-R11: GAIL’s letter dated 02.02.99 reminder for

attending DLP.

Exhibit-R12: GAIL’s letter dated 29.04.99 most urgent letter

for attending the shortcomings observed by

the Respondent.

Exhibit-R19: RRA’s letter dated 23.02.98 regarding

forwarding the checklist to Claimant (R19/1 to

R19/3).

Exhibit-R20: RRA’s letter dated 06.04.98 showing the

shortcoming of the work (R/20/1 to R20/2).

Exhibit-R21: RRA’s letter dated 08.01.98 forwarded the

checklist/defects of Club building to Claimant

(R21/1 t R21/7).

Exhibit-R22: GAIL’s letter dated 09.06.98 stating that

Claimant is not attending the defects and

Respondent getting the defects executed at

the risk and cost of claimant.

Hence the claim of Rs.1,24,897/- is denied.

K. The contents of Para K of the petition are reiterated and

reaffirmed. The contents of Para k of the Reply to the extent the

same are contrary to or inconsistent with the contents of

corresponding Para of petition are denied being incorrect and

misconceived. Contents of this Head of claim are denied. As

per contract clause no.97A. Claimant was required to submit

Bank Guarantee equivalent to 9.5% of the contract value

against the Technical Examination/Audit.

VERIFICATION

Verified at New Delhi on this ___________day of March,2009

that the contents of the above affidavit are true and correct,

that nothing there is false, and nothing material has been

concealed.

DEPONENT