Dismissed

M/S Gawar Construction Co. v. State of Haryana & Ors.

Punjab & Haryana HC11 Aug 2011ARB/25/2011

Case brief

AI extract

What is this about?

The High Court dismissed an application for appointment of an arbitrator in an arbitration case. The Court held the petitioner was estopped from raising a new dispute regarding the extension of the Defect Liability Clause because they failed to object to the Engineer's decision within the 14-day period mandated by the agreement.

What did the court decide?

Application for appointment of an arbitrator was dismissed as the petitioner was estopped from raising the dispute due to non-compliance with contractual notice periods.

M/S Gawar Construction Co. Vs State of Haryana & Ors. — Arbitration | Punjab & Haryana HC (2011)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Arb. Case No. 25 of 2011

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Date of Decision: 11.8.2011

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M/s Gawar Construction Company ….Petitioner

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vs.

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State of Haryana and ors ..Respondents

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CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA

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Present: - Mr. John Kumar, Advocate for the petitioner. Mr. Pradeep Singh Poonia, Addl. AG, Haryana

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Hemant Gupta, J

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The Petitioner has sought appointment of an Arbitrator in respect of the dispute arising out of an agreement dated 18.11.2005. As per the said agreement, the petitioner was given the contract of work of Improvement of Widening & Strengthening of JhajjarBadli Road from Km. 0.00 to 18.25 in Jhajjar District. It was on 24.8.2006, the scope of work was extended and the work was to be completed on or before 20.10.2006. It is pointed out by Mr. Poonia, learned counsel for the respondent that in fact, the petitioner completed the work on 10.10.2006.

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In the agreement, there is clause of defect liability. As per the said clause, the contractor is to maintain the work completed for a period of two years after the date when the work is completed. The grievance

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Arb. Case No. 25 of 2011

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of the petitioner is that as per the Defect Liability Clause, the petitioner is to maintain the constructed road for a period of two years and since, the said period has come to an end, therefore, he is entitled to payment for the maintenance of the road.

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Mr. Poonia states that the direction to maintain the road was issued within the validity period of Defect Liability Clause which expired on 31.1.2009. He has further pointed out that the petitioner has not raised any dispute before the Dispute Review Expert Committee within 14 days of the notification of the Engineer’s decision in terms of Clause 24.1. It is contended that since, the petitioner has not raised any dispute in respect of extension of Defect Liability Clause, therefore, the petitioner cannot seek resolution of the alleged dispute through arbitration.

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Having heard learned counsel for the parties, I do not find that the petitioner can be permitted to raise dispute in respect of issue of extension of Defect Liability Clause. The Defect Liability clause as per the averments made in the written statement was extended from time to time, lastly vide the communication dated 31.12.2008. The petitioner has not raised any dispute within 14 days of such notification. The communication to raise dispute is Annexure P-2 i.e. on 17.2.2010. In terms of Clause 24.1of the agreement, the petitioner can raise dispute

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Arb. Case No. 25 of 2011

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within 14 days of the notification of the Engineer’s decision i.e. from 31.12.2008. Since, the petitioner has not complied with the terms of the agreement, therefore, the petitioner cannot be permitted to raise the dispute at this stage. The petitioner is estopped to raise dispute now having failed to object to the decision of the engineer for more than one year.

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Thus, there is no dispute which is required to be adjudicated by an arbitrator.

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Dismissed.

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(HEMANT GUPTA) JUDGE

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11.8.2011 preeti

M/S Gawar Construction Co. v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

M/S Gawar Construction Co. v. State of Haryana & Ors.

Case brief

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What did the court decide?

What the court decided

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