BEFORE THE SOLE ARBITRATOR SH. B.L. SINGAL; GURGAON, HARYANA

Arbitration Case No. ____ OF 2016.

In the matter of Arbitration between:

______________                                         CLAIMANT

VERSUS

_____________                                 RESPONDENT

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.

REPLY TO PRELIMINARY SUBMISSIONS

1-2.   That the contents of paras 1-2 of the preliminary submissions are wrong and denied. It is denied that the claim filed by the claimant is totally false, baseless, vague and is based upon fake and forged bills and upon the bills which pertain to the work which was never assigned to the claimant by the respondent.

3.      That the contents of para 3 of the preliminary submissions are wrong and denied. It is denied that the claimant has filed three separate claims against three different sister concerns of the respondent company and has intermingled the bills of work of these companies in these claims thereby rendering these claims as suspicious. It is submitted that claim of the claimant is only concerned to M/s ___________ _________ is not intermingled with any other concern of __________. Although, the claimants are in legal tussle of receivable payments with other companies of M/s ___________.

4.      That the contents of para 4 of the preliminary submissions are wrong and denied. It is denied that the whole claim of the claimant is based on such irrelevant and baseless invoices which clearly prove the falsity of the claim of the claimant and the malafide intentions of the claimant to mislead the Tribunal and therefore the claim of the claimant is liable to be dismissed.  The Invoice no. ___________ is explainable legitimate the claimant is being enclosing herewith the copy of invoice as cited, duly verified by the resident project manager of ______________Limited – _________. Also, be point out that P.O. no. being mentioned in the referred invoice i.e. ________ is in accordance to P.O. Further, claimant has also received the’____’ Form bearing no. ___________ dtd __________ against the mentioned invoice, which clarifies he acceptance of invoice by __________. Similarly, invoice no. ____________ being denied by respondent is legitimate in all respect. The copy of P.O. vide ref. no. _________ dtd. ___________ pertaining to the said invoice and also referred in the same invoice is being enclosed for reference of the respondent. It is submitted that Invoice ___________ are legitimate and in accordance to the issued Purchase Order. There had been a discrepancy in noting of P.O. number in the referred invoice but it was purely typology error and has not discrepancy in relation to statutory such as Party Name, values or taxes. The material was dispatched and receipted at site and in binding __________ has also issued us ‘C’ Form bearing no. _______dtd __________. Henceforth, the invoices are legitimate.

REPLY ON MERITS:-

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

i).      That the contents of para 1 of sub para (i) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the respondent had obtained the services of claimant vide various purchase/work orders but the claimant's work/services were very poor from the very inception, Claimant's way of working was of sub-standard and not up to the mark as per the established standards of the industry. It is further denied that the material supplied by the Claimant was also below standard and not in conformity to the purchase order issued to the Claimant. It is also denied that as per the Purchase order issued to the Claimant, the Claimant \ had to supply Structured Steel of _________ \ BRANDS but the Claimant failed to adhere this and instead supplied this material of local/other unspecified brands. It is further denied that the claim of the Claimant is based on unverified bills/quantity of material supplied though it was mandatory for the Claimant to get the bills of material & services verified from the project manager of the respondent but the claimant failed to comply the said requirement. It is further denied that this issue of supply of local/other unspecified brand material was raised by the respondent and after a lot of persuasion, claimant admitted the fact of supply of material of different brand than agreed in P.O. and further agreed to issue credit note @ Rs_________ Kg. but never credited this amount to Respondent. It is further denied that the respondent is entitled to recover an amount of Rs. __________/- on this account. It is admitted that claimant accepted the credit note of Rs.______/-.

ii).     That the contents of para 1 of sub para (ii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the claimant was bound to get the material inspected from the authorized representative of the Respondent before dispatch of material as per the "inspection" clause of the Purchase Order but claimant completely failed to adhere the same and supplied the material without affording any opportunity to respondent to inspect die same. It is further denied that the said inspection was never waived-off by the respondent in this way the claimant supplied uninspected sub-standard material to the respondent which caused huge bearing on the project which in turn harmed the respondent financially besides causing loss of reputation. The statement is totally baseless. It would have been complete rejection against the supply of first consignment to site if the case was no inspection basis. Always there had been verbal inspection discussions with concerned officials of ­­­­­­­­_______ and due to urgency of project executions were always asked to dispatch the material at site. Never ever, neither post receipt of material at site nor in any communication there had been any concerns of inspection.

iii)     That the contents of para 1 of sub para (iii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the claimant failed to supply the material in exact confirmation of the bills raised by him i.e. the material supplied by him was short as described/detailed in his invoices. It is further denied that the claimant is liable to refund the amount equivalent to the value of short quantity which comes to Rs________/-. The matter being represented in relation to difference in weights is totally false and baseless. The matter was never brought in knowledge of any Mannschaft personnel, either by e-mail or even to the site in charge of claimant regarding shortage material supply. The weighment slips being now annexed by _____ is their internal property and had never been shared / or communicated to the claimant in the past.

iv)     That the contents of para 1 of sub para (iv) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that as per the terms and conditions of the purchase order, the claimant had to supply the complete material within two months of the date of purchase order but the claimant also failed to supply the material within the stipulated time frame and whatever material was supplied by him, was unverified/uninspected & short. It is further denied that the claimant totally failed to supply the material as per the purchase order which on one hand delayed the project of the respondent and on other hand also affected the quality & strength/durability of structures of the project. It is also denied that as per the Clause 12 of Purchase Order, the respondent is entitled to recover Liquidated Damages from the claimant to the tune of Rs. _____________/-. The para being raised by ________ Infra is totally frivolous. The delay in execution of the project whatever pertained has always been on account of _________ non-payments and irregularities. The same was communicated to them through various mails that had been annexed in the claim of the claimant.

v)      That the contents of para 1 of sub para (v) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the Respondent asked the Claimant several times not to supply the sub-standard material and made the Claimant understand that the said material was to be used in Solid Waste Management Project which infact was a prestigious project of the Central & State Government implemented as per the direction of Hon'ble Supreme Court and therefore the Respondent was not in a position to compromise over the quality of material used in this project, but the Claimant was not ready to understand the seriousness of the situation and continued with his hostile attitude. It is further denied that the respondent also asked the claimant to supply the complete quantity of material as per the Purchase Order and that too within the stipulated time frame but to no use. It is also denied that the claimant failed to supply the complete quantity of material and due to this short fall in material, respondent had to procure this short material from other vendors that too on higher rates in the situation of exigency because it was a prestigious project for the respondent and respondent wanted to complete it at any cost and in this way the respondent has suffered huge financial losses besides mental harassment. The para of use of sub standard material is totally baseless. The use of alternate make of material was agreed upon mutually considering non-availability of desired makes and keeping in mind the execution intact. Also, the reduced price of INR ___/- was result of mutual discussions, as referred in para no. (i).  

vi)     That the contents of para 1 of sub para (vi) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that apart from the purchase order, the respondent had also entrusted a work order upon the claimant and the said contract regarding Civil Work was also time bound i.e. time was the essence of the contract i.e. the claimant was bound to complete the Civil Work within 100 days from the date of work order but the claimant was not able to arrange the sufficient man power / labour which was necessary to execute the ongoing project which ultimately harmed the respondent financially besides causing delay in execution of the project. It is further denied that respondent asked the claimant several times to improve his working but to no use due to this continued scenario, work was totally halted at several occasions. It is also denied that vide email dated _____ the respondent requested the claimant to arrange for a panting team to paint the structured steel before erecting the same and again reminded vide email dated ________ to arrange the team for painting of steel structure otherwise it will be difficult to paint the structure after erection but the claimant did not bother to the request of the respondent. The para being raised by _______ Infra is totally frivolous. The delay in execution of the project whatever pertained has always been on account of __________ non-payments and irregularities. The same was communicated to them through various mails that had been annexed in claim of the claimant. The delay was purely in relation to delayed payments from ________ end.

vii)    That the contents of para 1 of sub para (vii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that due to the deficient work rendered by the claimant and continues delay in execution of the work, respondent was under constant pressure to complete the work in time and therefore the respondent warned the claimant several times to complete the work in time but no fruitful results emerged and the claimant continued with his hostile attitude towards the assigned work. It is further denied that it that vide E-mail dated _______, the respondent wrote to the Claimant "as discussed on telephonic several times and with reference to the trailing mails for engage of extra team/manpower for the speed up of erection work, still no response is getting from your side. Kindly note that we have started the erection work of pre-sorting shed from last month back (inc. all disputes) but still the work is not completed, your vendor has engaged only 07 persons. As per your working criteria, you are taking one month for completing one shed, its means we required next 04 months to complete the overall job. Again requested to please arrange your extra team by today itself at any cost, for speed up of the work. It is further denied that the respondent again warned of the same situation vide E-mail dated _______. Further Vide E-mail dated _________, the respondent wrote to the claimant "with reference to the telephonic discussion with you have regarding the welding of extra based plate for shed numbers 10, 10a, 14, 14a for structural columns, kindly arrange the same by today itself otherwise your labour will be sitting idle. Apart from this, still your new contractor for structural steel erection not started the work due to lack of hydra, electricity, LPG, oxygen etc. / am not understanding that how you are managing your contractor. Kindly revert me back asap." It is also denied that the delay in execution of work & poor speed of work was further explained to Claimant vide various E-mails, vide email dated ________, the respondent informed the claimant about not supplying the balance structure material for final compost section and monsoon shed and further informed the claimant about the pendency of painting of steel structure and requested to arrange the team for the same. it is further denied that vide this mail, the respondent further informed the claimant that erection of structure for pre-sorting, RDF, inert processing shed was not up to the mark and about the discontinuation of the work since last 25 days and other problems regarding the slow pace of the work. It is also denied that vide another email dated _________, the respondent informed the claimant about the poor work progress, again vide email dated ______, the respondent reminded about the slow pace of civil as well as mechanical work which was due to the payment dispute of claimant with his sub-contractors. It is further denied that vide this email, the respondent again raised the old issues which the claimant had failed to resolve despite repeated requests and reminders of the respondent. It is also denied that the Claimant failed to improve the pace of work resulting into idling of manpower and this fact is evident from mail dated _______. It is further denied that due to incomplete supply of material as per purchase order, delay, poor quality work of claimant and idling of manpower, respondent had to bear all additional costs pertaining to labour’s wages, rent of hired machineries administrative cost, etc. etc. on his own, only due to the abovementioned defaults on the part of the claimant and respondent has suffered to the tune of Rs._______ for above mentioned causes which the respondent is entitled to recover from the claimant. The para is already replied with in above. Respondent has referred e-mail dated ______ and the claimant replied to para with governed action on ______ (copy enclosed). Likewise, respondent e-mail dated _____ was replied immediately mentioning the pending payments matters (copy enclosed). Likely, respondent’s email dated ______ was replied by claimant after wait until _____, similarly pertaining matter to non payments.

viii)   That the contents of para 1 of sub para (viii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that due to above mentioned delay in execution of work order substandard work rendered by the claimant the project of the respondent delayed of more than six months which includes the time spent in getting the work done/completed from another vendor. It is further denied that due to this delay of more than 6 months, the respondent could not start the production of Compost & RDF and consequently incurred loss of earnings on account o\ loss of production to the tune of R.s.________/- as profit. It is also denied that the claimant seeks damages for business losses for a period of 1 months only sub sequent to the stoppage of operations by the claimant and states that the same are actual and directly emerge from the defaults of the claimant. The para is frivolous and unjustified.

ix)     That the contents of para 1 of sub para (ix) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the respondent is also entitled in recovery liquidated damages in the tune of Rs. _____/- from the claimant for aforementioned delay caused by claimant as per clause 12 of work order. The para is frivolous and unjustified.

x)      That the contents of para 1 of sub para (x) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the claimant was legally bound to deposit labour cess to the government to the tune of 1% of the total value of work order and purchase order which comes to Rs. ________/- but the claimant ignored the same despite repeated requests by the respondent. It is further denied that the respondent itself has to deposit the said labour cess to the concerned authorities and therefore suffered loss of Rs. ________/- which amount is legally recoverable from the claimant. It is further denied that the claimant has also failed to produce any documents with regard to labour compliances like ESIC/PF/Insurance etc. in utter violations of clause no. of the work order. It is also denied that the claimant has also failed to produce on record any labour licence in its favour by the competent labour authorities. The deposit of labour cess is purely _____ liability. The annexure letter referred is addressed in the name of _____ Infra and was never ever brought in knowledge of claimant ever. Also, there is no reference of the matter in statutory taxes in the Purchase Order. It would have been virtually impossible for claimant– MIIPL to work at site without labour policy or compliance to statutory like ESI / PF etc. Neither claimant could have initiated work nor _____ could employ such contractor. Claimant’s sub contractor – Peru Builders was a resident sub contractor to ____ team on the similar site for various other works and they have provided all statutories to ____ and then initiated work on account of ____-. Also, an e-mail dated -__________ (copy enclosed) pertaining to scanned copy of workman insurance policy is enclosed.

xi)     That the contents of para 1 of sub para (xi) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the services rendered by the claimant to other group companies of respondent are also deficient and below specified standards due to which these group companies have also suffered huge financial losses besides mental harassment. The claimant has outstanding payments and statutory with other companies of M/s A2Z Group and they are being trialed in court separately.

xii)    That the contents of para 1 of sub para (xii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied.  It is denied that besides above mentioned financial losses, Respondent has also suffered on account of loss of reputation & goodwill, mental & physical harassment etc. solely due to the lackluster approach of claimant towards his liabilities entrusted upon him through purchase/work order and therefore the claimant is liable to compensate the respondent for all these losses to the tune of Rs._____/-.

xiii)   That the contents of para 1 of sub para (xiii) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that there are numerous defaults/violations on the part of Claimant due to which the Claimant failed to complete the works within the stipulated time and further failed to supply the requisite materials i.e. the Claimant failed in totality to complete the assigned work which have caused numerous losses to the Respondent as detailed above.

xiv)   That the contents of para 1 of sub para (xiv) of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that despite all the above mentioned facts regarding the failure of Claimant to properly execute the order of supply & works, the Respondent has paid an amount of Rs. __________/- (Rupees ___) to the Claimant till date and the Respondent is also legally entitled to recover these amounts from the Claimant

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4.      That the contents of para 4 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that finding no way out and to save its projects, the respondent had to buy those material / machines from another vendor namely M/s. ___. for replacing the defective material / machines supplied by the claimant, this was a huge financial burden upon the respondent. It is further denied that debit notes worth Rs. ______/- were issued to the claimant to compensate the losses suffered by respondent in purchase of above said material from M/s. ______ Conveying Systems Pvt. Ltd. & other vendors.

5.       That the contents of para 5 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that due to the deficient work rendered by the claimant and continues delay in execution of the work, respondent was under constant pressure from _____________. to complete the work in time and therefore the respondent warned the claimant several times to complete the work in time but no fruitful results emerged and the claimant continued with his hostile attitude towards the assigned work.

6.      That the contents of para 6 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the services rendered by the claimant to other group companies of respondent are also deficient & below specified standards due to which these group companies have also suffered huge financial losses besides mental harassment. It is further denied that those losses are yet to be assessed and shall be brought on record at the earliest.

7.       That the contents of para 7 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that due to deficient and delayed work rendered by the claimant, respondent had to bear all additional costs pertaining to Idling charges, labour’s wages, rent of hired machineries and administrative cost etc. etc. on his own, only due to the abovementioned defaults on the part of the claimant and therefore the claimant is solely liable to compensate the respondent for that.

8.      That the contents of para 8 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that besides above mentioned financial losses, respondent has also suffered on account of loss of reputation and goodwill, mental and physical harassment etc solely due to the lackluster approach of claimant towards his liabilities entrusted upon him through purchase order and therefore the claimant is liable to compensate the respondent for all these losses.

9.      That the contents of para 9 of the counter claim are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that as on date, the ledger of the respondent shows a debit balance of Rs. _______/- i.e. the respondent is entitled to recover Rs. _______/- from the claimant for which the respondent is filing present counter claim.

10.     That the reply to counter claims are as under;-

A.      That the contents of sub para A of the claim- ledger balance are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the respondent is legally entitled to recover Rs._____/- being amount due against the claimant as per ledger.

B.      That the contents of sub para B of the claim-idling charges are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that Rs._____ being amount incurred by respondent against additional costs pertaining to labour’s wages, rent of hired machineries, administrative cost etc. which the respondent incurred on account of idling of manpower and machinery due to halt of work on several occasions which occasioned due to the faulty and substandard material supplied by the claimant.

C.      That the contents of sub para C of the claim-mental pain & harassment are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that respondent is entitled to recover of ______ for mental pain and harassment suffered by respondent in the hands of the claimant.

D.      That the contents of sub para D of the claim-loss of goodwill and reputation are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the respondent has suffered loss of reputation and goodwill in the marker especially in the eyes of ____ and the claimant is liable to compensate the respondent for the same to the tune of ____.

E.      That the contents of sub para E of the claim-litigation cost are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that respondent is also entitled to recover and Rs._____ as litigation cost incurred by respondent solely due to the claimant.

F.      That the contents of sub para F of the claim-interest are absolutely wrong, incorrect and reiterated, hence specifically denied. It is denied that the claimant is liable to pay interest @____. on the above mentioned total claim amount of Rs.______/- till final adjudication of the case.

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

Prayer clause along with its 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 :-

          It is therefore most respectfully prayed that the counter claims of the respondent may kindly be dismissed and relief may kindly be granted in favour of the claimant as prayed in the statement of the claimant, in the interest of justice, equity and circumstances of the case.

Pass such further order or orders as this Hon’ble Court 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                                                                       

_______________

ADVOCATE

____________

New Delhi-110013.

BEFORE THE SOLE ARBITRATOR SH. B.L. SINGAL; GURGAON, HARYANA

Arbitration Case No. ____ OF 2016.

In the matter of Arbitration between:

____________                                              CLAIMANT

VERSUS

________________                                   RESPONDENT

AFFIDAVIT

Affidavit of __________, about ___ years, Director of M/s. ____________, New Delhi-110028, do hereby solemnly affirm and declare as under: -

1.       That I am the Director of claimant company and I am conversant with the facts and circumstances of the present case and as such am 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 _________ 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