Rejoinder of claimant to respondents' statement of defence in arbitration proceedings
0 of 104 blanks filled
IN THE MATTER OF:
Claimant's name: CLAIMANT
VERSUS
Respondents' names: RESPONDENTS
D.O.H.: Date of hearing 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 the Statement of Defence filed by the answering Respondents (hereinafter referred to as the "Respondents"). It is stated that the Respondents have made libellous and slanderous allegations against the Claimant in their Statement of Defence, and the Claimant reserves its right to initiate such legal action as may be warranted under law in respect of the said allegations.
Without prejudice to the foregoing, and without in any manner admitting any of the submissions, contentions or allegations made in the Statement of Defence by the answering Respondents, save and except those expressly admitted, the Claimant tenders this Rejoinder to the Statement of Defence as under:
1.That the contents of paragraph 1 of the Statement of Defence are wrong and denied. It is denied that the Claimant has not approached this Hon'ble Tribunal with clean hands, or that it 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 wholly baseless, unsubstantiated and devoid of merit.
2.That the contents of paragraph 2 of the Statement of Defence are a matter of record and hence require no reply.
3.That the contents of paragraph 3 of the Statement of Defence are a matter of record and hence require no reply.
4.That the contents of paragraph 4 of the Statement of Defence are wrong and denied. It is denied that the Respondent was desirous of constructing a warehouse at Location of proposed warehouse, New Delhi, and that the Claimant approached the Respondent and its representative, holding itself out as one of the best in the construction of 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 Date of work order to the Claimant for the construction of a 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 comprised the construction of a warehouse building with materials to be procured by the Claimant itself, except for concrete and steel, which were to be supplied by the Respondent free of cost in terms of the contract. It is further denied that the contract was an actual-work-done and measurement contract.
REPLY TO THE PRELIMINARY OBJECTIONS:
5.That the contents of paragraph 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 the failure of the Claimant to meet timelines, the safety standards of the workforce/labour, failure to observe quality and standards of construction, failure to deploy adequate workforce at the site, and wilful defiance of and violation of the terms of the Work Order executed between the parties.
6.That the contents of paragraph 6 of the preliminary objections are wrong and denied. It is denied that time was the essence of the contract, or that, as per the terms of the Work Order, the construction of the warehouse building was to be completed by Contractual completion timeline from the date of the Work Order, and that the Claimant egregiously breached the timelines of the Work Order despite several reminders from the Respondent. It is further denied that the Claimant made empty promises to the Respondent throughout the execution of the project that it would complete the project within the stipulated timelines, and that it 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 would be bound by the time schedule and would strictly adhere to the same throughout the performance of the Work Order, without any deviation.
7.That the contents of paragraph 7 of the preliminary objections are wrong and denied. It is denied that the Claimant not only breached the timeline envisaged in the Work Order but also breached the timelines of the schedules submitted by it on several occasions, displaying its incompetence and lackadaisical conduct in the execution of the project. It is further denied that, from the very inception, the Claimant began to lag behind the schedule submitted by it. It is further denied that on Date of respondents' one-week plan, the Respondent submitted a one-week plan setting out the tasks it intended to complete within that week, and that the Claimant failed to adhere to the said schedule. It is further denied that the Respondent was constrained to send an email dated Date of respondents' reminder email to the Claimant, reminding it to adhere to the timelines and to deploy adequate manpower to expedite the progress of the work. It is further denied that, despite the same, the Claimant effected no improvement in the progress of the work. It is further denied that the Respondent was again constrained to send an email dated Date of respondents' email on work issues, outlining the several issues impeding the progress of the work, and requesting the Claimant to resolve the same immediately.
8.That the contents of paragraph 8 of the preliminary objections are wrong and denied. It is denied that the Claimant sent an email dated Date of claimant's email on delays to the Respondent, wherein it furnished 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 an email dated Date of respondents' email on inadequate resources to the Claimant, pointing out that the Claimant was working with inadequate resources, including an engineer and a shuttering team, and had breached the timeline of each schedule submitted by it. It is further denied that the Respondent had to meet targets it had promised its client, and that failure to meet the same had an adverse impact upon the reputation and goodwill of the Respondent, which it had 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 Date of respondents' email on roof slab deadline, Date of respondents' email on roof slab deadline and Date of respondents' email on roof slab deadline, that the ground floor roof slab ought to be completed by Deadline for ground floor roof slab at any cost, and that failure on the part of the Claimant to complete the same would attract damages/compensation at the rate of 5% per week of the amount of the Work Order. It is further denied that the Claimant, vide email dated Date of claimant's assurance email (Pg. 327 of the SOC), assured the Respondent that it would endeavour to complete the same by Claimant's assured completion date, and that it was the Claimant, and not the Respondent, which was responsible for the execution in any manner whatsoever.
9.That the contents of paragraph 9 of the preliminary objections are wrong and denied. It is denied that the Claimant, vide email dated Date of claimant's email admitting delays, categorically admitted the delays committed by it, while assuring the Respondent that it was taking all necessary steps to complete the project on time. Vide email dated Date of respondents' reminder email (Pg. 337 of the SOC filed by the Claimant), the Respondent was again constrained to remind the Claimant that it had defaulted on each schedule submitted by it and had furnished 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 exceeded even one day beyond Maximum permissible timeline, the Claimant would be liable to bear the risk and cost. It is further denied that, in response, the Claimant, vide email dated Date of claimant's assurance email (Pg. 336 of the SOC), assured the Respondent that it would endeavour to complete the project within the aforesaid timeline, and categorically admitted that, if the work extended beyond the stipulated timeline for completion of the project as per the contract, it would be liable for the risk and cost.
10.That the contents of paragraph 10 of the preliminary objections are wrong and are denied. It is denied that the assurance turned out to be an empty promise, as alleged, or that there was no change in the progress of the work. It is further denied that the parties held a meeting on Date of meeting between parties wherein it was mutually decided that the project would be completed by Agreed completion date, and that in the event of the Claimant's failure to complete the project within the said timeline, pre-estimated damages/compensation equal to 10% of the final project cost would be payable by the Claimant. It is further denied that the Claimant raised no objection to the said agreement between the parties, and that the same was communicated to the Claimant vide email dated Date of email recording agreement.
11.That the contents of paragraph 11 of the preliminary objections are wrong and are denied. It is denied that, despite several extensions and accommodations having been afforded to the Claimant, the Claimant kept falling behind the timelines on one frivolous pretext or another, and unilaterally and arbitrarily revised the timelines of the project of its own accord. It is further denied that a specimen of the same is to be found in the Claimant's email dated Date of claimant's email revising timeline (Pg. 354 of the Claimant's Statement of Claims), whereby the Claimant stated that the completion date of the project was revised to Revised completion date. It is further denied that, within twenty days thereof, the Claimant sent a further email dated Date of claimant's second revision email to the Respondent, citing frivolous reasons, and stated that the timeline had been revised to Further revised completion date (Pg. 355 of the Claimant's Statement of Claims). It is further denied that, vide a meeting held on Date of meeting fixing completion deadline and an email of even date, the parties had specifically agreed that the project would be completed by Agreed completion date, and that any breach of the said timeline would attract pre-estimated damages/compensation of 10% of the final project cost. It is further denied that, despite the said agreement, the Claimant capriciously and arbitrarily continued to revise the timelines of the project to suit its own convenience and to conceal its own delays. It is further denied that the Respondent, vide email dated Date of respondents' email on delay, clarified emphatically that the entire delay in the execution of the project was solely attributable to the Claimant. It is further denied that the Respondent nevertheless agreed to grant a final extension up to Extended deadline, without prejudice to its rights and interests under the Contract. It is further denied that, despite the aforesaid extension, the Claimant continued to lag behind the schedules and to perform unsatisfactory work, which again constrained the Respondent to point out several deficiencies in the Claimant's workmanship vide emails dated Date of respondents' email on workmanship and Date of second respondents' email on workmanship.
12.That the contents of paragraph 12 of the preliminary objections are wrong and are denied. It is denied that the construction carried out by the Claimant, which was itself incomplete and delayed, was vitiated by various quality issues and defects, which were allegedly pointed out by the Respondent time and again vide various emails requiring 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 defect-rectification and maintenance work during the defect liability period, to be undertaken by the Claimant as pointed out by the Respondent, and that the work cannot be deemed to have been finally completed unless and until the defects pointed out by the Respondent are rectified by the Claimant to the accord and satisfaction of the Respondent.
13.That the contents of paragraph 13 of the preliminary objections are wrong and are denied. It is denied that the Work Order empowered the Respondent to withhold payments in the event that the defective work was not remedied by the Claimant.
14.That the contents of paragraph 14 of the preliminary objections are wrong and are denied. It is denied that the Respondent, vide emails dated Date of defect notification email, Date of first additional defect notification email, Date of second additional defect notification email, Date of third additional defect notification email, Date of fourth additional defect notification email, Date of fifth additional defect notification email, Date of sixth additional defect notification email, Date of seventh additional defect notification email, Date of eighth additional defect notification email, Date of ninth additional defect notification email and Date of tenth additional defect notification email, informed the Claimant of various defects in the building pertaining to, inter alia, leakages, poor-quality materials and poor execution of the work, and requested the Claimant to rectify the said defects in terms of the Contract. It is further denied that the Claimant turned a deaf ear to the Respondent's requests and failed to rectify the defects to the satisfaction of the Respondent. It is further denied that, aggrieved by the Claimant's conduct, the Respondent, vide email dated Date of respondents' email recording dissatisfaction with quality, categorically recorded that, despite discussions and meetings, the Claimant had effected no improvement in the quality or plan of the work, and had shown no concern whatsoever for expediting the work or for quality control. It is further denied that, vide the aforesaid email, the Respondent clearly conveyed its apprehension to the Claimant that the Claimant appeared to have no interest in completing the work in a proper manner.
15.That the contents of paragraph 15 of the preliminary objections are wrong and are denied. It is denied that the terms of the Work Order provided, in unambiguous terms, that the Claimant would be solely responsible for arranging staff and labour, and for their payment, housing, feeding and transport; it is further denied that the said terms stipulated that the Claimant would employ only such persons as were appropriately skilled and experienced in their respective lines of work. It is further denied that the burden thereof was not in any manner to be shared by the Respondent, and that the Claimant, from the very inception of the project, failed to deploy adequate staff and labour at the site, which resulted in a delay in the completion of the project. It is further denied that the Respondent, vide email dated Date of respondents' email on manpower, urged the Claimant to deploy adequate manpower at the site and to accelerate the progress of the work, the same already being behind the stipulated timeline. It is further denied that, despite the Respondent's constant reminders, the progress of the work remained unchanged, and the shortage of manpower remained a persistent feature throughout the execution of the project, resulting in delays in completion which are entirely attributable to the Claimant. It is further denied that the Claimant not only failed to deploy adequate manpower at the 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 Date of respondents' email on staff documents, inter alia, informed the Claimant that the documents of the staff employed by the Claimant, viz. their engineering degrees, had not been submitted to the Respondent despite reminders. It is further denied that the Respondent made it abundantly clear to the Claimant that, with effect from Effective date for engineering degree requirement, an employee without an engineering degree, as required under the Contract, could not be counted as staff. It is further denied that the Claimant assured the Respondent that it would share the documents of its staff. It is further denied that, from the performance of the Claimant's work, which stands vitiated by 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 paragraph 16 of the preliminary objections are wrong and are denied. It is denied that, in addition to the work order dated Date of original work order, two further and separate work orders dated Date of first ancillary work order and Date of second ancillary work order were issued to the Claimant for ancillary works, viz. the construction of the boundary wall. The table set out for ease of reference is incorrect and is hence denied.
17.That the contents of paragraph 17 of the preliminary objections are wrong and denied. It is denied that, vide email dated Date of email granting final extension, the Respondent granted a final extension to the Claimant up to Extended deadline, and that as the extended date approached, the Claimant was still struggling to complete the work in terms of the work orders and remained far behind schedule. It is further denied that the contract was a measurement contract payable on actual work done. Out of the total contract value of Rs.Total contract value (₹)/-, the Claimant raised bills amounting to only Rs.Amount of bills raised (₹)/- upon the Respondent, which constitutes merely Percentage of contract billed% of the total contract value. It is further denied that, as on Date as of work completion assessed, the Claimant had completed only about 32% of the work, leaving 68% of the work yet to be completed. It is further denied that the Respondent made a total payment of Rs.Total payment made (₹)/- to the Claimant, inclusive of payments of Rs.Payment made directly to vendors (₹)/- made by the Respondent directly to various vendors at the Claimant's request. It is further denied that the Claimant received excess payment from the Respondent to the extent of Rs.Amount of excess payment (₹)/- after taking into account all tax invoices and pro forma invoices paid in their entirety.
18.That the contents of paragraph 18 of the preliminary objections are wrong and denied. It is denied that, despite several reminders and extensions granted to the Claimant, the Claimant failed to expedite the progress of the work or to rectify the defects pointed out by the Respondent. It is further denied that the Claimant manhandled the project manager of the Respondent on Date of manhandling incident and threatened him with death for no fault of his. It is further denied that the incident of manhandling and the death threats on Date of manhandling incident deeply traumatised the Respondent's project manager, who came to fear for his life. It is further denied that, consequently, on the very same day, i.e., Date of complaint to police, the Respondent filed a complaint before the Police Station, Name of police station, seeking appropriate action against the Claimant's staff.
19.That the contents of paragraph 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 requisite payments, and that the Claimant failed to complete the work within the stipulated timelines, and that the work performed was defective, thereby causing further losses to the Respondent. It is further denied that, in the circumstances aforesaid, the Respondent was left with no option but to terminate the Work Order vide letter dated Date of termination letter.
20.That the contents of paragraph 20 of the preliminary objections are wrong and denied. It is denied that, vide the aforesaid termination notice dated Date of termination notice, the Respondent requested the Claimant to vacate the construction site and to remove all its tools and equipment within 48 hours of receipt of the termination notice. It is further denied that the Respondent called upon the Claimant to participate in the proceedings for joint measurement, so that any balance payment found due could be made to the Claimant in terms of the Work Order dated Date of work order. 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 while wilfully disregarding the Respondent's calls to settle the accounts. It is further denied that, upon the Claimant's failure to pay the wages of the labour employed by it after the termination of the Contract vide notice dated Date of termination notice, the Respondent received a notice dated Date of labour union notice from "Name of labour union" demanding payment of wages of 20 labourers. It is further denied that, as per the clauses reproduced hereinabove, payment of wages to the staff and labour fell entirely within the scope of the Claimant's obligations, and that the Claimant nevertheless failed to pay the said wages. It is further denied that the Respondent, therefore, issued a legal notice dated Date of legal notice to claimant to the Claimant, requesting it to pay the outstanding dues of the labour in terms of the Contract.
21.That the contents of paragraph 21 of the preliminary objections are wrong and denied. It is denied that, on account of the defective work performed by the Claimant and its failure to rectify the defects and to complete the work in accordance with the timelines, the Respondent was constrained to issue a separate work order dated Date of work order to new contractor to another contractor, namely, Name of new contractor, for the completion of the balance work left incomplete by the Claimant and for the rectification of defects, for an amount of Rs.Amount of new work order (₹)/-. 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 paragraph 1 of the Statement of Defence require no rejoinder, and the contents of the corresponding paragraphs of the Statement of Claim are reiterated as correct.
2.That the contents of paragraph 2 of the Statement of Defence require no rejoinder, and the contents of the corresponding paragraphs of the Statement of Claim are reiterated as correct.
3.That the contents of paragraph 3 of the Statement of Defence are wrong and denied, and the contents of the corresponding paragraphs of the Statement of Claim 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 Date of work order, the work assigned to the Claimant was to be completed by Original completion date, and that the Claimant not only breached the aforesaid timeline but also breached the timelines revised in an arbitrary manner by the Claimant itself. It is further denied that, despite the grant of several extensions to the Claimant, the Claimant performed work amounting to only Percentage of work completed% of the contract value as on Date as of work percentage assessed, which left the Respondent with no option but to terminate the Contract. It is submitted that, after considerable negotiations between the Claimant and the Respondents, the Respondents were pleased to issue the Work Order dated Date of work order (hereinafter referred to as the "WO"), whereby the project at Project location, New Delhi — for the construction of a warehouse building with materials (excluding concrete and steel) at the site situated at Site location, Delhi — was awarded to the Claimant in accordance with the terms and conditions 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 caused extreme mental pressure and anxiety to the Claimant owing to the Respondents' misconduct, high-handedness and improper dealings in relation to the WO.
4.That the contents of paragraph 4 of the Statement of Defence are wrong and denied, and the contents of the corresponding paragraphs of the Statement of Claim are reiterated as correct. It is denied that the Respondent adhered to the terms of the Work Order throughout its operation until its termination; on the contrary, it was the Respondent that egregiously and high-handedly breached the terms of the Work Order, causing huge losses to the Claimant. It is submitted that the Respondents are responsible for the day-to-day affairs of Name of respondents' company, and it was therefore their duty to adhere to and comply with all the terms and conditions of the WO, in letter and in spirit, as signed between the Claimant and the Respondents.
5.That the contents of paragraph 5 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that the aforesaid final WO was sent to and shared with the Claimant by email on Date of email sending work order, whereas the hard copy of the same was collected from the Respondents' office on Date of collecting hard copy of work order. Thereafter, the Claimant signed the hard copy of the said WO on the same day and returned it to the Respondents on Date of returning signed work order.
6.That the contents of paragraph 6 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that several emails were exchanged between the Claimant and the Respondents, in which the Respondents admitted that the project land had not been demarcated until mid-July 2022; consequently, actual physical possession of the project land was handed over to the Claimant only on Date of possession handover, that is, the date on which the WO was finally signed by the Claimant and handed over to the Respondents.
7.That the contents of paragraph 7 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that although the WO was prepared by mutual consent in the month of Month work order was prepared, the Respondents failed to obtain the requisite clearances and demarcation within the agreed period. There was, therefore, a delay at the Respondents' end in handing over possession of the project site to the Claimant until the end of July 2022.
8.That the contents of paragraph 8 of the SoD are reiterated, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that, as per the terms and conditions of the WO, the agreed period within which the construction was to be completed at the project land was seven months, that is, six months and two weeks as the initial stipulated period under the WO, followed by a grace period of a further two weeks.
9.That the contents of paragraph 9 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is denied that, vide email dated Date of final extension email, the Respondents granted the Claimant a last and final extension to complete the project. It is further submitted that on Date of notice of remedial steps, the Claimant was given clear notice that if no remedial steps were taken and the work was not completed by Deadline for completion, the Respondents would take over the project. It is denied that, in any manner, it can be construed that the final date of completion was Final date of completion, or that the Claimant, repeatedly and throughout the execution of the project, revised the timelines of its own accord without consultation with the Respondents in order to conceal its own failures in executing the project. It is further denied that the Respondents issued various notices and reminders to the Claimant to adhere to the timelines and to rectify the defects pointed out by them, and that the Claimant paid no heed to such requests and turned a deaf ear thereto. It is further denied that, vide email dated Date of respondents' email, the Respondents made it abundantly clear to the Claimant that, despite repeated reminders, the Claimant was not making any change in progress or quality, and requested the Claimant to take immediate steps in that regard, failing which the Respondents would have to terminate the contract and take control of the entire project. It is further denied that the Claimant had notice from the Respondents that, upon failure to take remedial steps, the Contract would be terminated. It is further denied that the Claimant, instead of expediting progress and rectifying the defects, engaged in illegal activities at the site, namely, manhandling the Respondents' project manager and issuing death threats. It is further denied that the Respondents filed a criminal complaint on Date of criminal complaint before the Police Station, Name of police station, seeking due action against the Claimant's staff, and that, thereafter, the Respondents were left with no option but to terminate the contract vide notice dated Date of termination notice. It is submitted that the stipulated period of seven months was to mature on Date stipulated period matured; however, to the Claimant's complete shock and dismay, an illegal termination letter was served upon the Claimant on Date of termination letter served. The said termination letter is wholly flawed, as it was issued without any reasonable grounds for such termination. The Claimant issued a detailed reply to the said termination letter on Date of reply to termination letter, to which the Respondents have paid no heed nor cared to respond till date.
10.That the contents of paragraph 10 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that, as the Respondents are aware, an NGT ban was imposed on all construction sites in Delhi, which continued and extended for a period of 35 days, during which no construction work could be carried out. Therefore, this period of 35 days must be added, over and above the seven-month period, in the calculation of the time within which the project was to be completed.
11.That the contents of paragraph 11 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is submitted that there was a delay and stoppage of work of 7 to 10 days owing to NHAI work being carried out right outside the project site, as a result of which the Claimant was unable to bring its machinery and raw materials to the site to carry out the construction work. Several communications by way of emails and WhatsApp chats were exchanged between the parties, in which the Respondents accepted that the entry to the project site was blocked, and accordingly sought time to resolve the said issue with the NHAI. As per the terms and conditions contained in the WO, access to the project site was the responsibility of the Respondents, and any hindrance in the execution of the scope of work under the WO must be duly accounted for; the Claimant is, therefore, entitled to an extension of the very same number of days.
12.That the contents of paragraph 12 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is denied that the Respondents promptly supplied all the relevant materials which they were bound to supply in terms of the Contract without any delay. It is further denied that the Claimant's allegations regarding delay in progress owing to the NGT ban, shortage of concrete and the NHAI work are baseless and bereft of any proof. It is submitted that the Respondents were also made aware that there was a delay of 10 to 12 days owing to a shortage of concrete. The said shortage was attributable to the negligence of the Respondents, since, under the WO, the duty and responsibility of providing concrete to the Claimant at the project site was cast upon the Respondents. The said fact is recorded and evident from various emails and WhatsApp chats, in which the Respondents admitted the shortage and the delay in providing concrete to the Claimant.
13.That the contents of paragraph 13 of the SoD are wrong and are denied, and the contents of the corresponding paragraphs of the SoC are reiterated as correct. It is denied that the PT beam fell entirely within the scope of work of the Claimant and formed part of the Work Order dated Date of work order; moreover, the Work Order clearly stipulated that it included all incidental work not specifically mentioned therein or noted on the drawings and documents shared with the Claimant. It is further denied that the Claimant failed to execute the PT beam in accordance with the drawings, resulting in further delays. It is further denied that, vide email dated Date of respondents' email on PT beam, the Respondents informed the Claimant that it had executed the PT beam with incorrect steel binding, which constrained the Respondents to engage a structural designer, at their own cost, to find a solution. It is further denied that, owing to the designer's instructions to rectify the execution of the PT beam, the construction of the PT beam had to be put on hold, contributing to further delays attributable entirely to the Claimant. It is submitted that, as per the terms and conditions contained in the WO, it was the duty of the Respondents to provide the drawings of the PT beam and the boundary walls, which were to be installed and constructed at the project site. There was a delay of more than one month, as the Respondents failed to provide the same within the agreed timelines. The said fact is evident and established from the most recent drawing, which was sent by the Respondents only on Date of drawing sent, that is, 17 days prior to the issuance of the termination letter dated Date of termination letter, thereby showcasing and portraying the malafide, irresponsible intention and conduct of the Respondents, calculated to cause grave loss to the Claimant.
14.That the contents of paragraph 14 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is denied that the Respondent has already granted several extensions to the Claimant, despite which the Claimant failed to execute the project in a time-bound manner and is now blaming the Respondent for its own failures. It is submitted that if the aforesaid delays, namely, the NGT ban and the inordinate delays attributable to the Respondents on account of missing drawings, shortage of concrete and restricted entry to the project site, are duly calculated and accounted for, the Claimant is legally bound and entitled to an additional 90–100 days for completion of the work at the project site, which would automatically extend the project completion date to June, 2023. The aforesaid delays and the extension of the 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 have, time and again, sought time to rectify the issues raised by the Claimant.
15.That the contents of paragraph 15 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is denied that it is the Claimant which has acted in a negligent and irresponsible manner, as demonstrated by the Respondents hereinabove. It is submitted that the negligent and irresponsible conduct of the Respondents has caused grave financial loss and mental harassment to the Claimant. Even so, owing to the long-standing mutual regard between the parties, the Claimant endeavoured to resolve these issues amicably; however, the Respondents have failed to show any genuine interest in settling the outstanding claims payable to the Claimant.
16.That the contents of paragraph 16 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is denied that the Claimant terminated the Work Order, or that the Respondent terminated the Work Order in strict adherence to its terms for breach committed by the Claimant. It is submitted that even after the Respondents illegally terminated the Work Order, which caused grave financial loss to the Claimant, the Claimant endeavoured 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 and dues to their staff along with all supporting data and details.
17.That the contents of paragraph 17 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that, to the Claimant's utmost surprise, the Respondents, after a period of one month, raised a baseless counter-claim which is contrary to the Work Order executed between the parties. This illegal and unsubstantiated counter-claim raised by the Respondents demonstrates their malafide intention of not settling the legitimate claims raised by the Claimant amicably, and further evidences their ill intention to cheat the Claimant and cause further financial hardship and losses to the Claimant.
18.That the contents of paragraph 18 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that the Claimant attempted to engage with the Respondents on the disagreements and disputes which the Respondents themselves created; however, all efforts of the Claimant failed, as the Respondents refused to cooperate in settling the legitimate claims and disputes raised by the Claimant.
19.That the contents of paragraph 19 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is denied that the Claimant is in wrongful receipt of excess payment made by the Respondent amounting to Rs. Amount of excess payment (₹)/-, which the Claimant is allegedly liable to refund to the Respondent along with interest. It is submitted that the Claimant was left with no other option but to invoke the arbitration clause stipulated in the Work Order so as to recover the dues which the Respondents have conveniently withheld and refused to pay, thereby causing grave financial loss to the Claimant.
20.That the contents of paragraph 20 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that, by way of the legal notice dated Date of legal notice, the Claimant, in terms of the Work Order and on account of gross violation and breach of its terms, invoked the Arbitration Clause. The relevant extract of Arbitration Clause B of the Work Order, applicable to the present case, is reproduced hereinbelow.
21.That the contents of paragraph 21 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that the process provided under Clause A of the Work Order now stands exhausted on account of the Respondents' lack of cooperation, and the said clause was invoked by the Claimant by way of the notice dated Date of invocation notice, wherein the Respondents were requested to suggest and share three (3) independent names of arbitrators, within a period of fifteen (15) days from receipt of the said notice, for adjudication of the disputes in terms of the Work Order.
22.That the contents of paragraph 22 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that on Date of invocation of arbitral clause, the Claimant served upon the Respondents the notice of invocation of the arbitral clause under the Work Order dated Date of work order. It is pertinent to mention that the Respondents replied vide reply dated Date of respondents' reply, suggesting three names of arbitrators; however, in response to the said reply, the Claimant responded by way of a rejoinder vide notice dated Date of rejoinder notice, disagreeing with the names so suggested by the Respondents. By such conduct, it is evident that the Respondents are not only in breach of their contractual mandate but have also shown disrespect to the rule of law, and their sole objective is to delay the adjudication of the present dispute between the Claimant and the Respondents.
23.That the contents of paragraph 23 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct. It is submitted that the Claimant has been compelled to invoke the arbitration clause, which was incorporated precisely to address and facilitate the resolution and settlement of disputes of the nature arising between the parties in relation to the agreement, as narrated above.
24.That the contents of paragraph 24 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct.
25.That the contents of paragraph 25 of the Statement of Defence are wrong and are denied, and the contents of the corresponding paragraphs of the Statement of Claims are reiterated as correct.
It is denied that the claims of the Claimant are bereft of any pleadings in support thereof, or that the Claimant has merely stated a lone figure which is completely unsubstantiated and cannot be countenanced.
The paragraphs forming part of the prayer of the Statement of Defence are absolutely wrong and are specifically denied. The Respondents are not entitled to the reliefs claimed by them.
Any allegation made in the Statement of Defence which is not specifically denied hereinabove is likewise absolutely wrong and is specifically denied, and such non-specific denial shall not be construed as an admission on the part of the Claimant.
P R A Y E R :-
It is, therefore, most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to grant relief in favour of the Claimant and against the Respondents, as prayed for in the main claim petition, in the interest of justice, equity and the circumstances of the case.
Pass such further order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
It is prayed accordingly.
PLACE: DELHICLAIMANT
THROUGH
DATED: Date of signing
(Advocate)
Counsel for Claimant
Off.: Advocate's office address-
Advocate's office address pin code.
Mob. No.: Advocate's mobile number
Email:
BEFORE SH. Name of arbitrator, LD. ARBITRATOR; DISTRICT JUDGE (RETD.),
DELHI INTERNATIONAL ARBITRATION CENTRE (DIAC)
DELHI HIGH COURT, NEW DELHI
CASE REF. NO. DIAC case reference number (first part)/DIAC case reference number (second part)/01-2024.
IN THE MATTER OF:-
Claimant's name: CLAIMANT
**Respondents' names: RESPONDENTS**
AFFIDAVIT
Affidavit of Deponent's name and address, Deponent's address pin code, who do hereby solemnly affirm and declare as under:-
1.That I am the Authorised Representative / Director of the Claimant company in the above-noted case, am fully conversant with the facts and circumstances of the case, and am competent to swear this affidavit.
2.That the contents of the accompanying Rejoinder to the Statement of Defence have been drafted by my counsel under my instructions and the same have been read over and explained to me; the said Rejoinder may be read as part and parcel of this affidavit and is not reproduced herein for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at New Delhi on this Date of verification day of Month and year of verification, that the contents 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