Dismissed

M/S Marshal Engineers v. State of Haryana & Ors.

Punjab & Haryana HC20 Jul 2011ARB/148/2010

Case brief

AI extract

What is this about?

This order disposed of two arbitration cases between a contractor and the State of Haryana regarding construction projects. The High Court held that the petitioner failed to comply with the agreement's clause requiring referral of disputes to an adjudicator within 15 days. The court dismissed the petition for lack of jurisdiction.

What did the court decide?

The petitioner petition raising the matter in the Arbitration Courts was dismissed as no valid dispute existed requiring adjudication.

M/S Marshal Engineers Vs State of Haryana & Ors. — Arbitration | Punjab & Haryana HC (2011)

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Arb. Case No.148 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of decision: 20.07.2011

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(i) Arb. Case No.148 of 2010

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M/s Marshal Engineers

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..Petitioner

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Versus State of Haryana and others (ii) Arb. Case No.149 of 2010

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..Respondents

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M/s Marshal Engineers

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..Petitioner Versus

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State of Haryana and others

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..Respondents

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CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA.

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Present:- Mr.Pritam Saini, Advocate for the applicant.

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Mr.Pradeep Singh Poonia, Additional Advocate General, Haryana.

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HEMANT GUPTA, J. (ORAL)

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This order shall dispose of Arbitration Case No.148 of 2010 and Arbitration Case No.149 of 2010 in respect of identical but separate agreements dated 12.04.2006 and 29.08.2006 respectively. The facts for the purpose of the present cases are taken from Arb. Case No.148 of 2010.

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Vide aforesaid agreement dated 12.04.2006, contract for

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Arb. Case No.148 of 2010

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constructing the Shahbad Feeder from RD- 5 Kms. to 9 Kms. was awarded to the petitioner. The stipulated period for the said project was one year. In Arbitration Case No.149 of 2006, the agreement was executed on 29.08.2006 for constructing lined channel from RD 1070 meters to 2682 meters and the period of completion of this project was six months. Both the agreements contain identical terms and conditions.

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As per the agreement in Arbitration Case No.148 of 2010, the period of work was completed on 02.02.2009 and on 22.02.2009 in Arbitration Case No.149 of 2010, after the petitioner was granted extension to complete the project. The case of the petitioner is that the delay in the project was on account of defaults committed by the respondents and the petitioner claims compensation on account of delay in completion of project.

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The Arbitration Clause reads as under:

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“20.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer under the Contract, or that a decision was wrongly taken, the decision will be referred to the adjudicator within 15 days of the notification of the Engineer's decision, through Registered Letter/courier or speed post under intimation of both Engineer and competent authority.

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20.2 The Adjudicator shall give a decision in writing within 30 days of receipt of a dispute, provided that if both the parties to dispute agree, this period may be extended for a longer period, but no exceeding a total of 60 days, from the date of receipt of notification of a dispute.

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20.3 The Adjudicator will be paid daily at the rate specified in the Contract Data together with such reimbursable expense of the types as provided in the Contract Data and the cost shall be divided equally between both the Engineer and the Contractor. Either party may refer a decision of the Adjudicator for arbitration, within 15 days of the receipt of Adjudicator's written decision. If neither party refers the dispute to arbitration with in this period, the Adjudicator's decision will be final and binding.

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Arb. Case No.148 of 2010

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20.4 Dispute in the first instance shall be, referred to adjudicator”.

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On behalf of the respondents, it has been pointed out that during the course of execution of the contract, the petitioner has raised various claims which were not accepted by the Executive Engineer. Such communications have been attached with the reply as Annexure R-7 to R- 10. It is pointed out that the petitioner has not disputed such decisions communicated by the Executive Engineer within 15 days for decision by Adjudicator in terms of Clause 20.1 of the agreement. Therefore, at this stage, after receiving full and final payment, the petitioner cannot be permitted to raise disputes and the petitioner is estopped in terms of the agreement to raise any dispute.

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Admittedly, the petitioner has not raised any dispute to the Adjudicator within 15 days of the communication of the decision by the Engineer. Therefore, the petitioner has not complied with Clause 20.1 of the agreement. Since the pre-condition for raising dispute before an Arbitrator is not satisfied, therefore, it cannot be said that there exist any dispute which require adjudication by an Arbitrator.

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Dismissed.

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(HEMANT GUPTA) JUDGE

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July 20, 2011 Sukhpreet

M/S Marshal Engineers v. State of Haryana & Ors.

Case brief

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M/S Marshal Engineers v. State of Haryana & Ors.

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