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BEFORE SH. PRADEEP CHADDAH, LD. ARBITRATOR; DISTRICT JUDGE (RETD.),
DELHI INTERNATIONAL ARBITRATION CENTRE (DIAC)
DELHI HIGH COURT, NEW DELHI
CASE REF. NO. DIAC/______/______.
IN THE MATTER OF:-
______________________________. : CLAIMANT
VERSUS
___________________________- :RESPONDENTS
D.O.H.:-______ 2024
REJOINDER ON BEHALF OF THE CLAIMANT TO THE STATEMENT OF
DEFENCE FILED BY THE RESPONDENTS TO THE STATEMENT OF CLAIM FILED BY THE CLAIMANT.
MOST RESPECTFULLY SHOWETH:-
That
the present Rejoinder is filed on behalf of the Claimant in reply to Statement
of Defence filed by answering Respondents (hereinafter called as “Respondents”).
It is stated that the Respondents have made libelous and slanderous allegations
in their Statement of Defence against the Claimant and the Claimant reserves
the right to initiate the legal action as warranted under the law against the
Claimant.
Without
prejudice to the foregoing and without in any manner admitting any of the
submissions, contentions and allegations made in the Statement of Defence by answring Respondents
save and except those expressly
admitted, the Claimant is tendering
its Rejoinder to the Statement of Defence as under:-
1. That the contents of para 1
of the Statement of Defence are wrong and denied. It is denied that the
Claimant has not come before this Hon'ble Tribunal with clean hands and has
suppressed material facts from this Hon'ble Tribunal in an attempt to mislead
this Hon'ble Tribunal into admitting the alleged claims of the Claimant which
are completely baseless, unsubstantiated and devoid of any merit.
2. That the contents of para 2
of the Statement of Defence are matter of record, hence, need no reply.
3. That the contents of para 3
of the Statement of Defence are matter of record, hence need no reply.
4. That the contents of para 4
of the Statement of Defence are wrong and denied. It is denied that the Respondent was desirous of building a warehouse in _______,
New Delhi and the Claimant approached the Respondent and representative itself
to be one of the best at constructing warehouses in a timely and efficient
manner. It is further denied that pursuant to negotiations between the parties,
the Respondent issued a Work Order dated __________ to the Claimant for
construction of warehouse building at the site allotted by the Respondent. It
is further denied that the Scope of Work envisaged in the Work Order inter
alia contained work of construction of warehouse building with materials
that would have to be procured by the Claimant itself except for concrete and
steel which was to be supplied by the Respondent free of cost as per the terms
of the contract. It is further denied that the contract was as per actual work
done and measurement contract.
REPLY TO THE PRELIMINARY OBJECTIONS
:-
5. That the contents of para 5 of the preliminary objections are wrong
and denied. It is denied that during the performance of the Work Order,
disputes arose between the parties qua inter alia failure of the
Claimant to meet timelines, safety standard of workforce/labour, failure to
observe quality and standards of construction, failure to deploy adequate
workforce at site and wilful defiance and violation of the terms of the Work
Order executed between the parties.
6. That the contents of para 6 of the preliminary objections are
wrong and denied. It is denied that time was the essence of the contract and as
per the terms of the Work Order the construction of the warehouse building was
to be completed by _______ from the date of the Work Order, however, the
Claimant egregiously breached the timelines of the Work Order despite several
reminders from the Respondent. It is further denied that the Claimant gave
empty promises to the Respondent throughout the execution of the project that
it will execute the project within the timelines, however, the Claimant
colossally failed to adhere to the scheduled timelines resulting in various
losses to the Respondent. It is further denied that the terms of the Work Order
clearly envisaged that the Claimant shall be bound by the time schedule and
shall be strictly adhering to the same throughout the performance of the Work
Order with no deviation.
7. That the contents of para 7 of the preliminary objections are
wrong and denied. It is denied that however, the Claimant not only breached the
timeline envisaged in the Work Order but also breached the timelines of the
schedule submitted by it on several occasions, displaying its incompetency and
lackadaisical conduct to carry out execution of the project. It is further
denied that from the very inception, the Claimant started to lag behind the
schedule submitted by it. It is further denied that on _______, the Respondent
submitted a one week plan containing the tasks it plans to complete within a
weeks' time, however, the Claimant failed to adhere to the said schedule. It is
further denied that the Respondent was constrained to send email dated __________to
the Claimant reminding it to adhere to the timelines and deploy adequate
manpower to expedite the work progress. It is further denied that despite that,
the Claimant effected no change in the progress of the work. It is further
denied that the Respondent was again constrained to send email dated _________
outlining the several issues impeding the progress of the work and requested
the Claimant to resolve the same immediately.
8. That the contents of para 8 of the preliminary objections are
wrong and denied. It is denied that claimant sent email dated __________ to the
Respondent whereby the Claimant gave baseless justifications for its delays. It
is further denied that observing no change in the progress of the work, the
Respondent was again constrained to send email dated ________ to the Claimant
reminding the Respondent that is working with inadequate resources ining
engineer and shuttering team and breached the timeline of each schedule
submitted by the Claimant. It is further denied that the Respondent had to
reach targets that it had promised its client and failure to reach the same has
an adverse impact upon the reputation and goodwill of the Respondent which it
has laboriously built over a period of years by working in the most efficient
and time bound manner to the accord and satisfaction of its customers. It is further
denied that the Respondent had already communicated to the Claimant vide emails
dated _______, _________ and ________ that the ground floor roof slab should be
finished by ________ at any cost and failure of the Claimant to finish the same
would attract 5% damage/compensation per we of the amount of the work order. It
is further denied that the Claimant vide email dated _________ (Pg 327 of SOC) has further assured the
Respondent that it will try to complete the same by ___________ and it is the
Claimant which is responsible for execution and not the Respondent, in any way.
9. That the contents of para 9 of the preliminary objections are
wrong and denied. It is denied that the Claimant, vide email dated _________
categorically admitted about the delays committed by it, however, assured the
Respondent that it is taking all the necessary steps to complete the project on
time. Vide email dated ________ (Pg 337 of SOC filed by Claimant) the
Respondent was again constrained to remind the Claimant that it has defaulted
on each schedule submitted by it and giving baseless justifications for the
same. It is further denied that the Respondent made it abundantly clear vide
the said email that if the timelines as per the schedule submitted by the
Claimant exceed even a day more than ________, then the Claimant would be
liable to bear the risk and cost. It is further denied that in response, the
Claimant, vide email dated __________ (Pg 336 of SOC), assured the
Respondent that it will try to complete the project within the aforesaid
timeline and categorically admitted that if the work extends beyond the
stipulated timeline of completion of the project as per contract, then it will
be liable for the risk and cost.
10. That the contents of para 10 of the preliminary objections are
wrong and denied. It is denied that it again turned out be an empty promise as
there was no change in the progress of work. It is further denied that the
parties held a meeting on ________ and it was mutually decided that the project
shall be completed by __________ and if the Claimant fails to complete the same
within the said timeline then a pre estimate damage/ compensation would be
payable by the Claimant equaling to 10% amount of the final project cost. It is
further denied that the Claimant expressed no objection to the said agreement
between the parties and the same was communicated to the Claimant vide email
dated ________.
11. That the contents of para 11 of the preliminary objections are
wrong and denied. It is denied that despite affording several extensions and
accommodations to the Claimant, the Claimant, for one frivolous reason or
another kept falling behind the timelines and arbitrarily revised the timelines
of the project on its own accord. It is further denied that a specimen of the
same can be derived from Claimant's email dated _________ (Pg 354 of Claimant SOC) whereby the
Claimant stated that the completion date of the project is now ________. it is
further denied that within 20 days the Claimant again sent an email dated __________
to the Respondent, citing frivolous reasons and stated that the timeline is now
revised to _______ (Pg 355 of
Claimant SOC). It is further denied that it may be recalled that
vide a meeting held on _________ and email of the even date, the parties had
specifically agreed that the project should be completed by ________ and breach
of the said timeline would attract a pre estimate damage/compensation of 10% of
the final project cost. It is further denied that despite the said agreement,
the Claimant capriciously and arbitrarily kept on revising the timelines of the
project to suit its own convenience and cover up its delays. It is further
denied that the Respondent, vide email dated ___________, vehemently clarified
that the entire delay in execution of project is solely attributable to the
Claimant. It is further denied that the Respondent still agreed to grant a
final extension to the Respondent till _________ without prejudice to its
rights and interest under the Contract. It is further denied that despite the
aforesaid extension the Claimant still lagged behind schedules and performed
unsatisfactory work which again constrained the Respondent to point out several
issues in the workmanship of the Claimant vide emails dated _______ and _______.
12. That the contents of para 12 of the preliminary objections are
wrong and denied. It is denied that the construction done by the Claimant,
albeit incomplete and delayed, is also vitiated with various quality issues and
defects which have been time and again pointed out by the Respondent vide
various emails to the Claimant to rectify the defects in terms of the contract.
It is further denied that the cost of the contract is inclusive of all the
defects and maintenance work during the defect liability period to be
undertaken by the Claimant as pointed out by the Respondent and the work cannot
be deemed finally completed unless the defects pointed out by the Respondent
are not rectified by the Claimant to the accord and satisfaction of the
Respondent.
13. That the contents of para 13 of the preliminary objections are
wrong and denied. It is denied that the Work Order also empowered the
Respondent to withhold the payments in the event the defective work is not
remedied by the Claimant.
14. That the contents of para 14 of the preliminary objections are
wrong and denied. It is denied that the Respondent
vide emails dated _____,_______, _______, ______, _______, ______, _________, ________,
_________, __________, and _______ informed the Claimant about various defects
in the building pertaining to inter alia leakages, poor quality
material, poor execution of the work, etc. and requested the Claimant to
rectify the defects in terms of the Contract. It is further denied that the
Claimant turned a deaf ear to the requests of the Respondent and failed to
rectify the defects to the satisfaction of the Respondent. It is further denied
that aggrieved, the Respondent, vide email dated 09.02.2023, categorically
mentioned that despite discussions and meetings, the Claimant has effected no
change in the quality and plan and has not shown any concern whatsoever to
expedite the work and quality control. It is further denied that the Respondent
made its apprehensions very clear to the Claimant, vide that aforesaid email
that it appears that the Claimant is not interested in completing the work in a
proper manner.
15. That the contents of para 15 of the preliminary objections are
wrong and denied. It is denied that the terms of the Work Order elucidated in
unambiguous terms that the Claimant would be solely responsible for arranging
staff and labour and for their payment, housing, feeding and transport, additionally,
the terms also stipulated that the Claimant shall employ only those persons who
are appropriately skilled and experienced in their respective line of work. It
is further denied that the burden of the same was in no manner to be shared by
the Claimant, however, from the very inception, the Claimant failed to employ
adequate staff and labour at site which consequently resulted in delay in
completion of project. It is further denied that the Respondent, vide emails
dated ___________- urged the Claimant to employ adequate manpower at site and
accelerate the progress as the same was already behind stipulated timeline. It
is further denied that the work progress remained the same despite constant
reminders of the Respondent, and the shortage of manpower remained a constant
feature throughout the execution of the project which led to delays in
completion of the project which is entirely attributable to the Claimant. It is
further denied that the Claimant not only failed to employ adequate manpower at
site but also failed to employ skilled and qualified manpower in terms of the
Contract. It is further denied that the Respondent vide email dated _______
inter alia informed the Claimant that the documents of the staff employed
by the Claimant viz. engineering degrees have not been submitted to the
Respondent despite reminders. It is further denied that the Respondent made it
abundantly clear to the Claimant that employee without an engineering degree as
per contract cannot be counted as staff with effect from _______. It is further
denied that the Claimant assured the Respondent that it will share the
documents of staff. It is further denied that from the performance of the work
of the Claimant, which is vitiated with delays and defects, it is abundantly
clear that the staff employed by the Claimant was not qualified to execute the
tasks.
16. That the contents of para 16 of the preliminary objections are
wrong and denied. It is denied that in addition to the work order dated ________,
two more separate work orders dated _______ and ________ were issued to the
Claimant for ancillary works viz. construction of boundary wall. The table for
ease of reference is incorrect and hence denied.
17. That the contents of para 17 of the preliminary objections are
wrong and denied. It is denied that vide email dated ______, the Respondent had
granted final extension to the Respondent till _____, however, as the end date
neared, the Claimant was still struggling to complete the work in terms of the
work orders and remained far behind the schedule. It is further denied that the
contract was as per actual work done and measurement contract. From the total
value of the contracts of Rs.__________/- the Claimant has only raised bills
amounting to Rs ________/- upon the Respondent which amounts to only __% of the
total contract. It is further denied that as on _______, the Claimant had only
completed about 32% of the work and 68% of the work still remained to be
completed. It is further denied that the Respondent has made total payment of
Rs_______/- to the Claimant which is inclusive of payment of Rs______-/- made by
the Respondent directly to the various vendors on the request of the Claimant.
It is further denied that the Claimant is in receipt of excess payment made by
the Respondent to an extent of Rs ________/- after taking into account all the
tax invoices and Performa invoices being paid in entirety.
18. That the contents of para 18 of the preliminary objections are
wrong and denied. It is denied that despite several reminders and extensions
granted to the Claimant, the Claimant neither expedited the progress of work
nor rectified the defects as pointed out by the Respondent. It is further
denied that the Claimant manhandled the project manager of the Respondent on _______
and gave death threats to the project manager for no fault of the project
manager. It is further denied that the incident of manhandling and death
threats on _________ deeply traumatized the project manager of the Respondent
who became fearful for his life. It is further denied that therefore, on the
very same day, i.e. _____ the Respondent filed a complaint before the Police
Station, _________ for taking due action against the Claimant's staff.
19. That the contents of para 19 of the preliminary objections are
wrong and denied. It is denied that the Respondent was always ready and willing
to perform its part of the Contract by making the necessary payments, but the
Claimant failed to complete the work within the stipulated timelines and the
Work so performed is defective in nature causing further losses to Respondent.
It is further denied that in view of the above, the Respondent was left with no
other option but to terminate the Work Order vide letter dated _______.
20. That the contents of para 20 of the preliminary objections are
wrong and denied. It is denied that the Respondent vide the aforesaid
termination notice dated _______ requested the Claimant to evacuate the
construction site and take all its necessary tools and equipment within 48
hours of the receipt of the termination notice. It is further denied that the
Respondent further called upon the Claimant to come forward and join the
proceedings of joint measurement so as if any balance payment is due, it can be
made to the Claimant in terms of Work Order dated __________. It is further
denied that the Claimant neither cleared the site nor came forward to settle
the accounts and has filed this false and baseless statement of claim after
willfully ignoring the calls of the Respondent to come forward and settle
accounts. It is further denied that the Claimant failed to pay the wages to the
labour employed by the Claimant, after termination of the Contract vide notice
dated ________, the Respondent received a notice dated __________ from
"Bharatiya Labour Union" demanding payment of wages of 20 labour
workers. It is further denied that as per the clauses reproduced hereinabove,
the payment of wages to the staff and labour was entirely within the scope of
the Claimant, however, the Claimant failed to pay the wages to staff and
labour. It is further denied that therefore, the Respondent issued legal notice
dated ___________ to the Claimant, requesting the Claimant to pay the
outstanding dues of the labour in terms of the contract.
21. That the contents of para 21 of the preliminary objections are
wrong and denied. It is denied that due to defective work performed by the
Claimant and failure of the Claimant to rectify the defects and complete the
work in accordance in accordance with the timelines, the Respondent was
constrained to issue a separate work order dated ________ to another
contractor, namely, ____________for completion of the remaining work left
incomplete by the Claimant and for rectification of defects for an amount of Rs.__________/-.
It is further denied that the Claimant is liable to reimburse the said amount
to the Respondent in terms of the Contract.
REJOINDER TO PARAWISE REPLY:-
1. That the contents of para 1 of the Statement of Defence, need
no rejoinder and those of the corresponding paras of the Statement of Claim are
reiterated as correct.
2. That the contents of para 2 of the Statement of Defence, need
no rejoinder and those of the corresponding paras of the Statement of Claim are
reiterated as correct.
3. That the contents of para 3 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the allegations of the Claimant are completely unsubstantiated and
without any proof. It is further denied that as per the Work Order dated ______,
the work assigned to the Claimant was to be completed by ______. However, the
Claimant not only breached the aforesaid timeline but also breached the
timelines revised by the Claimant in an arbitrary manner. It is further denied that
despite granting several extensions to the Claimant, the Claimant has performed
work amounting to only __% of the Contract value as on ______ which left the
Respondent with no other option but to terminate the contract. It is submitted
that after considerable negotiations between the Claimant and Respondents, the
Respondents were pleased to issue the Work Order dated _______ (hereinafter
referred to as "WO"), thereby, issuing the project at______,
New Delhi for the construction of a warehouse building with materials
(excluding concrete and steel) for die site situated at__________, Delhi in
favour of the Claimant as per the terms and conditions as mentioned and agreed
upon therein. It is pertinent to
mention that the respondents have since inception created hurdles in the
execution of the project which have further led to extreme mental pressure and
anxiety due to their misconduct, high-headedness and improper dealings in
relation to the WO.
4. That the contents of para 4 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the Respondent has adhered to the terms of the Work Order
throughout the operation of the Work Order until its termination. Rather it is
the Claimant who egregiously breached the terms of the Work Order in a high
handed manner causing huge losses to the Respondent. It is submitted that the Respondents
are responsible for the day-to-day affairs of _________ and thereby it was their
duty to adhere and comply with all the terms and conditions of the WO in its
letter and spirit as signed between the Claimant and Respondents.
5. That the contents of para 5 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that the aforesaid final WO was sent and shared with the Claimant via
email on _______ whereas the hard copy of the same was collected from Respondents’
office on _________. Thereafter, a hard copy of the said WO was signed by the
Claimant on the same day and sent back the Respondents on __________.
6. That the contents of para 6 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that the several emails have been exchanged between the Claimant and
Respondents, wherein, the Respondents have admitted the fact that the project
land was not demarcated until mid July, 2022, thereby the actual physical
possession of the project land was only handed over to the Claimant on _______,
i.e., the date on which the WO was finally signed by the Claimant and handed
over to the Respondents.
7. That the contents of para 7 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that even though the WO was prepared by mutual consent in the month
of ________, however, the Respondents were unable to get the clearances and
demarcation done on the agreed-upon time period. Thus there was a delay at their
end to hand over the possession of the project site to the Claimant until end
of July, 2022.
8. That the contents of para 8 of the SoD are reiterated and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that as per the terms and conditions of the WO, the agreed-upon time
period within which the construction was to be completed at the project land
was seven months, i.e., six months and two weeks is the initial stipulated time
in the WO, and thereafter grace period of another two weeks.
9. That the contents of para 9 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that vide email dated _________ the Claimant was given last and final
extension by the Respondent to complete the project. Further on __________, the
Claimant was given clear notice that if no remedial steps are taken and the
work is not completed by __________, the Respondent shall take over the
project. It is further denied that therefore, by no means of imagination it can
be construed that final date of completion was _________, and the Claimant has
repeatedly throughout the execution of the project has resorted to revision of
timelines on its own accord without any consultation with the Respondent to
cover up its own failures to execute the project. It is further denied that the
Respondent gave various notices and reminders to the Claimant to adhere to the
timelines and rectify the defects pointed out by the Respondent. It is further
denied that however, the Claimant paid no heed to the requests of the
Respondent and turned a deaf ear. It is further denied that the Respondent vide
email dated _________ made it abundantly clear to the Claimant that despite
repeated reminders the Claimant is not effecting any change in progress or
quality and requested to take immediate steps in this regard otherwise the
Respondent would have to terminate and take control of the entire project. It
is further denied that the Claimant had notice from the Respondent that if
remedial steps are note taken the Contract shall be terminated. It is further
denied that the Claimant, instead of expediting the progress and rectifying the
defects, resorted to committing illegal activities on the site, viz.
manhandling the project manager of Respondent and giving death threats. It is
further denied that the Respondent also filed criminal complaint on ________ before
the Police Station, ________ for taking due action against the Claimant's staff,
therefore, after this, the Respondent was left with no other option but to
terminate the contract vide notice dated_______. It is submitted that the
stipulated time period of seven months was to mature on_______, however, to the
Claimant's complete shock and dismay, an illegal termination letter was served
upon the Claimant on _________. That the said termination letter dated
21.02.2023 is completely flawed as the same has been issued without any
reasonable grounds for such termination. The Claimant has issued a detailed
reply to their termination letter on __________, to which the Respondents have
neither paid any heed nor bothered to respond till date.
10. That the contents of para 10 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that as the Respondents are also aware, there was a NGT Ban imposed
for all construction sites in Delhi which continued and extended for a period
of 35 days because of which no construction work could be carried out.
Therefore, in the calculation of the time period within which the project site
was to be completed, this period of 35 days has to be added over and above the
seven month period.
11. That the contents of para 11 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that there has been a delay and stoppage of work by 7-10 days which
was due to the NHAI work right outside the project site because of which the
Claimant was unable to bring his machines and raw materials in order to carry
out construction work. Several communications via emails and WhatsApp Chats
have been exchanged between the parties wherein the Respondents have accepted
the fact that the entry to the project site was blocked and accordingly the Respondents
had sought time to resolve the said issue with NHAI. As per the terms and
conditions contained in the WO, the access to the project site was the
responsibility of the Respondents and any hindrance in execution of scope as
per the WO has to be accounted for and the Claimant deserves the extension of
the very same days.
12. That the contents of para 12 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the Respondent has promptly supplied all the relevant material
which it was bound to supply in terms of the Contract without any delay. It is
further denied that the allegations of the Claimant qua delay in progress due
to NGT, concrete and NHAI are completely baseless and bereft of any proof. It
is submitted that the Respondents have also been made aware of the fact that
there was delay of 10-12 days due to shortage of concrete. The shortage of
concrete was due to the Respondents negligence as the said duty and
responsibility as per the WO was casted upon Respondents, in order to provide
concrete to the Claimant at the project site. The said fact is recorded and evident from the various emails/
WhatsApp chats wherein the Respondents have admitted shortage and delay in
providing concrete to the Claimant.
13. That the contents of para 13 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the PT beam was entirely within the scope of work of the Claimant
and formed part of the Work Order dated ____________, moreover, the Work Order
clearly stipulated that it includes all incidental work not specifically
mentioned herein or noted on the drawing/documents as shared with the Claimant.
It is further denied that the Claimant failed to execute the PT beam in
accordance with the drawings which resulted in further delays. It is further
denied that the Respondent vide email dated ________ informed the Claimant that
the Claimant has executed PT beam with wrong steel binding which constrained
the Respondent to call structure designer for the solution on its own cost. It
is further denied that due to instructions of the designer to rectify the PT
beam execution, the construction of PT beam had to be put on hold which
contributed to further delays which is entirely attributed to the Claimant. It
is submitted that as per the terms and conditions contained in the WO, it was the
Respondents duty to provide drawings of PT Beam and boundary walls which were
to be installed and constructed at the project site. There has been a delay of
more than one month as the Respondents failed to provide the same as per the
agreed-upon time lines. The said fact is evident and established from the most
recent drawing which was sent by the Respondents only on ________, i.e. 17 days
prior to issuing the termination letter dated _________, showcasing and
portraying the malafide, irresponsible intention and behaviour of the Respondents,
to cause grave loss to the Claimant.
14. That the contents of para 14 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the Respondent has already granted several extensions to the
Claimant, despite of which the Claimant has failed to execute the project in a
time bound manner and now blaming the Respondent for its own failures. It is
submitted that if the aforesaid delays, i.e., the NGT Ban or inordinate delay
at their end due to missing drawings, shortage of concrete and restricted entry
to the project site are to be calculated and accounted for then the Claimant is
legally bound and entitled to get additional 90-100 days, for the completion of
the work at the project site, which automatically takes the project completion
date to June, 2023. The aforesaid delays and extension of time period have been
recorded in various communications between the parties through emails and
WhatsApp chats, wherein the Respondents have also admitted their fault and time
and again the Respondents have been seeking time to rectify these issues as
raised by the Claimant.
15. That the contents of para 15 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that it is the Claimant which has acted in a negligent and irresponsible
manner which the Respondent has demonstratively shown hereinabove. It is
submitted that the Respondents negligent and irresponsible behaviour have
caused grave financial loss and mental harassment to the Claimant. Even then
due to the long held mutual admiration, the Claimant has tried to resolve these
issues amicably but the Respondents have failed to show any keen interest in
settling the outstanding claims towards the Claimant.
16. That the contents of para 16 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that the Claimant has terminated the Work Order in strict adherence to
the terms of the Work Order for breach of the terms of the Work Order committed
by the Claimant. It is submitted that even after the Respondents have illegally
terminated the WO which has caused grave financial loss to the Claimant, the
Claimant's endeavour has been to resolve the dispute amicably and accordingly
shared the detailed claim with the Respondents through email and also handed
over a hard copy of the claim/ dues to their staff along with all the
supporting data and details.
17. That the contents of para 17 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that to the Claimant's utmost surprise, the Respondents after a
period of one month have raised a baseless counter-claim which is rather
contrary to the WO signed between the parties. This illegal and unsubstantiated
counter-claim raised by the Respondents proves their malafide intentions
to not settle the legitimate claims raised by the Claimant on amicable terms
and further shows their ill intentions to cheat the Claimant and cause further
financial hardships/ losses to the Claimant.
18. That the contents of para 18 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that the Claimant has attempted to engage with the Respondents on
disagreements and disputes which they have created, however, any and all
efforts of the Claimant have failed as the Respondents have refused to
cooperate so as to settle the legitimate claims and disputes as raised by the
Claimant.
19. That the contents of para 19 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
denied that it is the Claimant which is in wrongful receipt of excess payment
paid by the Respondent amounting to Rs________/- which the Claimant is liable
to refund to the Respondent along with interest. It is submitted that the
Claimant is left with no other option but to invoke the arbitration clause as
stipulated in the WO so as to recover the dues which the Respondents have very
conveniently withheld and refused to pay to the Claimant which is causing grave
financial loss to the Claimant.
20. That the contents of para 20 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is submitted
that by way of the legal notice dated ________ the Claimant in terms of the WO,
due to gross violation and breach of terms of the WO invoked the Arbitration
Clause. The relevant extract of the Arbitration Clause B of the Work Order applicable
to the present case.
21. That the contents of para 21 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that the process provided under Clause A of the Work order is now
exhausted on account of respondents lack of cooperation and the said clause is
being invoked by the Claimant by way of the notice dated ________ and made
request to the respondents to suggest and share 03 (three) independent names of
the arbitrators, within a period of 15 days from receipt of said notice for
adjudication of the dispute in terms of the WO.
22. That the contents of para 22 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that on ________ the Claimant served the notice of invocation of the
arbitral clause under the WO dated __________ to the Respondents. It is trite
to mention that the respondents replied vided reply dated _________ suggesting
three names of Arbitrators, however vide response to the said reply, the Claimant
responded in rejoinder vide notice dated _________ not agreeing to the said
names suggested by the respondents. Thus by such conduct of the Respondents, it
is evident that the Respondents are not only in the breach of its contractual
mandate but also disrespects the rule of law and the only objective of the
respondents is to delay the present dispute between the Claimant and
Respondents.
23. That the contents of para 23 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct. It is
submitted that the Claimant has been compelled to invoke the arbitration
clause, which had been incorporated to combat such disputes arising between the
parties for the resolving of disputes or settlements of such matters between
the parties relating to the agreement as narrated above.
24. That the contents of para 24 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct.
25. That the contents of para 25 of the SoD are wrong and denied and
those of the corresponding paras of the SoC are reiterated as correct.
It is denied
that the claims of the claimant are bereft of any pleading in support thereof
and the claimant has only given the aforesaid lone figure which is completely
unsubstantiated and cannot be countenanced.
Prayer para of the Statement
of Defence are absolutely wrong and specifically denied. The answering Respondents
are not entitled to the relief claimed for.
Any allegation made in the
Statement of Defence and are not specifically denied herein are absolutely
wrong and specifically denied and its non specifically denial shall not be
taken as an admission on the part of the Claimant.
It is therefore most respectfully prayed that the relief
may kindly be granted in favour of the Claimant and against the Respondents as
prayed in the main Claim petition, in the interest of justice, equity and
circumstances of the case.
Pass such further order or
orders as this Hon’ble Tribunal may deem fit and proper of the facts and
circumstances of the case, in the interest of justice.
It is prayed
accordingly.
DELHI CLAIMANT
THROUGH
DATED:
__________ (Advocate)
Counsel for Claimant
Off.: _______________-,
New Delhi-110019.
Mob. No-_____________
Email: __________
BEFORE SH. PRADEEP CHADDAH, LD. ARBITRATOR; DISTRICT JUDGE (RETD.),
DELHI INTERNATIONAL ARBITRATION CENTRE (DIAC)
DELHI HIGH COURT, NEW DELHI
CASE REF. NO. ____/_____/01-2024.
IN THE MATTER OF:-
____________________________. : CLAIMANT
__________________________________ :RESPONDENTS
AFFIDAVIT
Affidavit
of _______________________________________, New Delhi-110016, do hereby
solemnly affirm and declare as under:-
1. That I, the AR / Director of
the Claimant company in the above noted case and am fully conversant with the
facts and circumstances of the case and competent to swear this affidavit.
2. That the contents of the
said accompanying Rejoinder to the Statement of Defence drafted by my counsel
under my instructions and the same have been read over and explained to me and
the same may be read as part and parcel of this affidavit, which are not
reproduced herein for the sake of brevity.
DEPONENT
VERIFICATION :-
Verified at New
Delhi on this ___, day of April, 2024, that the contents of the above affidavit
are true and correct to my knowledge and no part of it is false thereof and
nothing material has been concealed therefrom.
DEPONENT
