BEFORE SH XXXXXX, LD. ARBITRATOR; DISTRICT JUDGE (RETD.),

DELHI INTERNATIONAL ARBITRATION CENTRE (DIAC)

DELHI HIGH COURT, NEW DELHI

CASE REF. NO. DIAC/XXXX/01-20**.

IN THE MATTER OF:-

XXXXX                                                                  : CLAIMANT

VERSUS

XXXXX                                                                  :RESPONDENTS

D.O.H.:-______ 20**

REPLY ON BEHALF OF THE CLAIMANT TO THE COUNTER CLAIM FILED BY THE RESPONDENT.

MOST RESPECTFULLY SHOWETH :-

PRELIMINARY OBJECTIONS:-

1.       That the allegations, submissions, contentions in the counter claim raised by the respondent are untenable, false, bogus and are denied. No sums are due and owing to the respondent as claimed or otherwise. The respondent is obfuscating issues to mischievously avoid his liabilities.

2.       That the Counter Claim raised by the Respondent in the present proceedings is without any merit, an afterthought and has been raised as a counter blast to the Claim Petition filed by the Claimant. It is a matter of fact that no such Counter Claim was ever raised prior to the present proceedings by the Respondent against the Claimant. The same deserves to be rejected on this ground alone.

3.       That the present claim has been raised under the provisions of the Contract which deals with imposition of Liquidated Damages. It is stated that the counter claim has been raised completely in contravention of the legal provisions required to be followed for raising such a claim and the same is also against the relevant provisions of the Contract. Any claim raised by the Respondent under this provision of the Contract is liable to be rejected on this ground alone.

REPLY ON MERITS:-

1.       That the contents of para 1 of the counter claim are reiterated, hence, matter of record. It is submitted that the present counter claim not signed and filed by the competent person of the respondent company.

2.       That the contents of para 2 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the Respondent issued a Work Order dated 17.05.2022 in favour of the Claimant for construction of warehouse at XXXXX, Delhi, India, the terms of the Work Order inter alia envisaged that the Claimant would be responsible for all material, labour, tools, tackles and construction machinery. It is further denied that the Respondent was obligated to supply concrete and steel to the Claimant free of cost as per the terms of the Contract. It is further denied that the Claimant was liable to finish the construction of the project by 24.11.2022 in terms of the contract, during the currency of the Work Order following disputes arose between the parties.

a.       That the contents of sub para a) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the terms of the Work Order unequivocally stipulated that the construction of the warehouse building was to be completed by 24.11.2022, however, the Claimant miserably failed to adhere to the aforesaid timeline for one frivolous reason or another and demanded extension of timelines from the Respondent to cover up its failures. It is further denied that the Respondent granted several extensions to the Claimant and accommodated the Claimant as much as possible until it became abundantly clear that the Claimant would be unable to execute the project. It is further denied that therefore, vide email dated 22.12.2022, the Respondent granted one final extension to the Claimant till 20.02.2022. It is further denied that as on 20.02.2022, the Respondent had only completed 30% of the total value of the Work Order and 70% still remained to be executed, therefore, the Respondent was constrained to terminate the Work Order vide notice dated 21.02.2022 owing to abject failures of the Claimant to execute the project in a time bound manner. Any allegation to the contrary being raised by the Respondent is totally false and incorrect.

b.       That the contents of sub para b) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that claimant not only failed to complete the construction within the timelines but also failed to efficiently undertake the construction of the warehouse as the entire building is vitiated with various defects which have been duly brought to the knowledge of the Claimant vide various emails. It is further denied that as per the terms of the Work Order the Claimant is bound to rectify the defects pointed out by the Respondent and the work cannot be deemed completed until the defects have been rectified by the Claimant at its own cost to the satisfaction of the Respondent. Any allegation to the contrary being raised by the Respondent is totally false and incorrect.

c.       That the contents of sub para c) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that insufficient manpower became recurrent feature throughout the execution of the project, as per the terms of the contract, the arrangement and deployment of adequate labour/ manpower at site was within the scope of the Claimant. It is further denied however, the Claimant failed to deploy adequate manpower at site which further contributed to huge delays in progress of the project. It is further denied that the Respondent, vide several emails requested the Claimant to deploy adequate labour at site, however the Claimant turned a deaf ear to the requests of the Respondent. Having not done so, the Respondent is estopped from raising such false and frivolous allegations at this point of time against the Claimant.

3.       That the contents of para 3 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that despite bringing the aforesaid facts and circumstances to the knowledge of the Claimant vide several emails, the Claimant instead of effecting any change in the progress of the work, resorted to committing illegal activities at the site viz. manhandling the project manager of the Respondent for which the Respondent was constrained to file a police complaint. It is further denied that therefore, the Respondent was left with no other option but to terminated the Work Order dated 17.05.2022 vide notice dated 21.02.2022. In any case these allegations have no bearing on the counter claim raised by the present Respondent.

4.       That the contents of para 4 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that due to the aforesaid failures of the Claimant to execute the project in adherence to the terms of the Work Order, the Respondent has incurred huge losses which the Claimant is liable to compensate. In any case these allegations have no bearing on the counter claim raised by the present Respondent.

That the reply to counter claims are as under;-

1.       That the contents of para 1 of the counter claim-1 delay compensation are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the construction of the warehouse was to be completed by 24.11.2022 as per the terms of the Work Order dated 17.05.2022, however, the Claimant miserably failed to adhere to the timelines envisaged in the Work Order and consequently requested the Respondent for extension of timelines. It is further denied that the Respondent extended all the cooperation to the Claimant and duly extended the timelines so as to accommodate the Claimant in covering up its delay, however, the Claimant breached the extended timelines as well which has led to the Respondent incurring huge losses. It is further denied that the parties vide a meeting held on 14.10.2022 and by way of an email of even date mutually agreed that if the Claimant fails to adhere to the timelines then a genuine pre estimate damage/compensation would be payable by the Claimant to the tune of 10% of the final project cost. It is further denied that therefore, the Respondent is claiming 10% delay compensation on the total amount of work orders amounting to Rs XXXXX/- (Rupees in words Only). The failure of the Respondent to pay the amounts due to the Claimant are a subject matter of the claims raised by it before the Hon'ble Arbitrator and are required to be paid by the Respondent.

2.       That the contents of para 2 of the counter claim-2 cost for completion of remaining work are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that since the Claimant failed to complete the construction of the warehouse, the Respondent was constrained to complete the remaining work at its own cost and for that purpose the Respondent was issued a separate work order dated 23.03.2023 to another contractor, namely, S.S. Developers and Contractors for completion of the remaining work left incomplete by the Claimant and for rectification of defects for an amount of Rs. XXXXX/-. It is further denied that the Claimant is liable to reimburse the said amount to the Respondent in terms of the Contract. The contents of this para have got no relevance to the counter claim.

3.       That the contents of para 3 of the counter claim-3 refund of excess amount are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the total contract value of all the contracts amounted to Rs. XXXXX/-, the Claimant has only raised bills amounting to Rs XXXXX/- upon the Respondent which amounts to only 32% of the total contract. IT is further denied that the Respondent has made total payment of Rs XXXXX/- to the Claimant, therefore, the Claimant is in receipt of excess payment made by the Respondent to an extent of Rs XXXXX/- after taking into account all the tax invoices and Performa invoices. Claimant is liable to refund the excess amount of Rs XXXXX/- to the Respondent along with 18% interest. The failure of the Respondent to pay the amounts due to the Claimant are a subject matter of the claims raised by it before the Hon'ble Arbitrator and are required to be paid by the Respondent.

          It is submitted that the respondent is not entitled to get any relief by way counter claim from the Hon’ble Sole Arbitrator.

Prayer clause along sub-paras of the counter claim are absolutely wrong and specifically denied. The respondent is not entitled to the relief claimed for.

P R A Y E R :-

          That in the aforesaid facts and circumstances of the case, it is most respectfully prayed that the Hon'ble Arbitrator may be pleased to award the claims raised by the Claimant in the Claim Petition filed by it. Further, the Hon'ble Tribunal is requested to reject the counter claim in its entirety, which has been raised by the Respondent in its Statement of Counter Claim. The above award may be passed in favour of the Claimant with costs against the Respondent.

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.

CLAIMANT

DELHI                            THROUGH

DATED                                                                            

XXXXX (Advocate)

Counsel for Claimant

Off.: XXXXX

XXXXXX

Mob. No.+91XXXXXX

Email: XXXXXX

BEFORE SH. XXXXXX ARBITRATOR; DISTRICT JUDGE (RETD.),

DELHI INTERNATIONAL ARBITRATION CENTRE (DIAC)

DELHI HIGH COURT, NEW DELHI

CASE REF. NO. DIAC/XXX/01-20**.

IN THE MATTER OF:-

XXXXX                                                                  : CLAIMANT

VERSUS

XXXXX                                                                  :RESPONDENTS

AFFIDAVIT

Affidavit of Mr. XXXXX aged about ___ years, Director / AR of XXXXX, 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 accompanying reply to the counter claims has been drafted under my instructions, which has been read and understood by me and I say that the contents of the same are true and correct.

DEPONENT

VERIFICATION :-

          Verified at Delhi on this ____, day of April, 2024 that the contents of paras of the above affidavit are true and correct to my knowledge. No part of it is false and nothing material has been concealed therefrom.

DEPONENT