Hemant Gupta, J. - (1.) THE Petitioner was granted contract for construction of Roads at Investate Bawal, District Rewari, Haryana as per Agreement executed between the parties on 02.12.1998. As per the said Agreement, the Petitioner was to complete the work within 27 months from the date of issue of instructions for the commencement of work i.e. w.e.f. 02.12.1998. The Petitioner could not complete the work within the stipulated period. The Respondents extended the time to complete the work up to 29.09.2003 without levy of any compensation.
(2.) THE Petitioner completed the work on or before 25.03.2004. The Petitioner submitted a statement of completion on 07.06.2004 vide Annexure R -3. On 14.03.2005 vide Annexure R -5, a Taking Over Certificate was issued by the Respondents but advising the Petitioner to complete the work in respect of 'rectification of earthern shoulders by making grade and camber' and 'repair of RCC culverts'. On 26.04.2005, 50% of the security was released to the Petitioner and the balance 50% on 12.08.2005. It was on 25.05.2007, the payment of final bill was released to the Petitioner. Thereafter, the Petitioner raised a demand claiming a sum of Rs. 99,89,810/ - inclusive of claim of non -release of payment against the work amounting to Rs. 1,99,950/ -, balance payment of escalation amounting to Rs. 41,40,804/ - and claim for price rise due to increase in market rates of bitumen and fuels amounting to Rs. 43,91,209/ -. It was the said demand, which was declined vide communication dated 29.04.2008 (Annexure A -3). It was communicated that payment of Rs. 1,99,950/ - cannot be released to the Petitioner on account of less consumption of cement to the extent of 5% as per the report of the Vigilance Department. It is, thereafter, the Petitioner invoked the jurisdiction of this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') through the present petition filed on 25.02.2010. In reply, it is inter alia pleaded that the Petitioner has accepted the full and final payment vide communication dated 03.06.2008 and, therefore, there is no dispute between the parties, which could be referred to an Arbitrator. It was pointed out that the escalation amount was paid to the Petitioner on the value of the work which was done up to 29.09.2003, based upon the indices of 04.03.2001 much before the extension of time to the Petitioner in terms of undertaking by way of an affidavit dated 25.06.2004. Thus there is no dispute which requires adjudication.
(3.) IT is admitted by the parties that in terms of Clause 15.10, the defect liability certificate was not issued, but the contractual obligations came to an end when the security amount furnished by the Petitioner was released. A perusal of the contract agreement shows that in terms of Clause 15.4 of the Agreement, the Contractor has to submit a statement on completion with supporting documents showing the final value of the work done in accordance with the contract and any further sum which the Contractor considers to be due. The "Taking Over Certificate" was issued on 14.03.2005 by the Respondent, but before the said certificate, the work was completed on 25.03.2004 and the Petitioner has submitted statement of completion on 07.06.2004. In fact, such statement of completion is in terms of Clause 15.4 of the Agreement, which reads as under: 15.4 Statement at Completion Not later than 84 days after the issue of the Taking -Over Certificate in respect of the whole of the Works, the Contractor shall submit to the Construction Manager, 3 copies of a statement at completion with supporting documents showing in details, in the form approved by the Construction Manager: (a) the final value of all work done in accordance with the Contract up to the date stated in such Taking -Over Certificate. (b) any further sums which the Contractor considers to be due.;