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TMI Blog2019 (8) TMI 1779X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 08.1.2019. 2. The facts of the case as set out in paras 2.1 to 3.8 of the impugned order are undisputed and are extracted below without any embellishment:- "2.1 The Petitioner i.e. Hindustan Construction Company Limited (hereafter referred to as 'HCC') on 15.07.2014 entered into a Contract with Delhi Metro Rail Corporation Limited (in short 'DMRC') to carry out certain works for Design and Construction of twin tunnel by Shield TBM, Underground ramp, Depot Entry-Exit Line and one underground station namely Najafgarh Station including architectural finishing, water supply, sanitary installation and drainage works from Chainage 2580.000 to 4121.170 on Dwarka- Najafgarh Metro Corridor of Phase-III of Delhi MRTS ("the main contract work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of HCC. iv. That payment to Ipex by HCC as per the schedule was adverted to in the LOI. 2.5 According to Ipex, these representations though false were made by HCC to draw Ipex into a situation which would require it to mobilize and employ plant and machinery, labour and staff at the earliest as the time for execution of the subcontract works commenced from 24.12.2014. 2.6 Insofar as Ipex is concerned, it also claimed before the learned arbitrator that as required under Clause 4 of the LOI, the security deposit was to be created by crediting in favour of HCC 5% from the running bills that Ipex would submit during the course of execution of the sub-contract works, which ultimately was to be released to it upon submission of a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the validity period of the PBG was not extended, it would seek its encashment. 3. Ipex, it appears, given the aforesaid difficulties and losses faced by it, vide letter dated 15.02.2016 sought waiver of the request made for the extension of the PBG. 3.1 Since HCC did not comply, Ipex moved this Court by way of a Section 9 petition. This petition was numbered as OMP(I)(COMM) 50/2016. The petition was, however, withdrawn by Ipex in view of HCC's letters dated 14.01.2016 and 18.02.2016. The net impact of these letters was that HCC had given up its stand conveyed in its letter of 10.02.2016. HCC, in fact, agreed that Ipex could furnish a PBG for a reduced value of Rs. 25 lakhs and extend its validity period for another six months. 3.2 Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and vendors are captured in the following communications exchanged between them: 13.05.2016. 23.06.2017, 07.07.2016, 25.07.2016 and 08.08.2016. 3.6 It was because of these reasons that Ipex, apparently, resisted the extension of the validity period of the PBG. 3.7 However, ultimately, albeit, under protest, Ipex on 13.09.2014 extended the validity of the PGB by a further period of six months. 3.8 Ipex followed this up by triggering the arbitration agreement on 29.09.2016. On 14.10.2016, HCC wrote to Ipex that it should submit its dispute to the project manager/construction head/Vice-President sub-contracts. Ipex, as advised, took the necessary steps and, in fact, on 10.12.2016 made attempts to resolve the disputes amicably. It appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cut off date. The written submission came to be filed by the counsel for appellant only on 14.12.2018 and that too, not with the learned Arbitrator but in the office of DIAC. Though directions had been issued to the parties to exchange their written submissions before filing the same, the appellant did not serve an advance copy on the counsel for the respondent. Consequently, the learned Sole Arbitrator decided the matter on the basis of the available records. After examining six claims lodged by the respondent, while declining the claim for loss of profits and scaling down the remaining claims, the Award was made on 08.1.2019. 5. Aggrieved by the said Award, the appellant invoked Section 34 of the A&C Act and filed OMP (COMM) 208/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been examined. He contends that had the learned Sole Arbitrator examined the written submissions of the appellant and the several documents annexed therewith including the work order in question and the standard terms, then Clause 39 (h) which prohibits payment towards idle charges, would have been taken into account and the claim of the respondent towards idle charges would not have been allowed in the impugned Award. 8. We have pointedly enquired from learned Senior Advocate appearing for the appellant as to whether, any of the above arguments were advanced before the learned Single Judge, more so when the twin grounds raised to assail the impugned Award have been set out in para 6 of the judgment extracted above, which specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X
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