BEFORE THE HON’BLE DELHI HIGH COURT LEGAL SERVICES COMMITTEE, JUDICATURE AT NEW DELHI
CS(COMM) MEDIATION /2023
IN THE MATTER OF:
M/S WOODFUN
Through it’s Attorney …PLAINTIFF
V E R S U S
INDIAN OIL CORPORATION LIMITED …DEFENDANTS
AND OTHERS
I N D E X
NEW DELHI
DATE:
Through Counsel for the Plaintiff
Dr Anupam Kumar Mishra (D/4972/2015)
Lexis & Company
A-1-B/26, Janakpuri,
New Delhi – 110058
9051112233
BEFORE THE HON’BLE DELHI HIGH COURT LEGAL SERVICES COMMITTEE, JUDICATURE AT NEW DELHI
CS(COMM) MEDIATION /2023
IN THE MATTER OF:
M/S WOODFUN
Through it’s Attorney …PLAINTIFF
V E R S U S
INDIAN OIL CORPORATION LIMITED …DEFENDANTS
AND OTHERS
M E D I A T I O N F E E S
(Affixed on Next Page)
New Delhi
Date:
Through Counsel for the Plaintiff
Dr Anupam Kumar Mishra (D/4972/2015)
Lexis & Company
A-1-B/26, Janakpuri,
New Delhi – 110058
9051112233
MEDIATION FEES AFFIXED
BEFORE THE HON’BLE DELHI HIGH COURT LEGAL SERVICES COMMITTEE, JUDICATURE AT NEW DELHI
CS(COMM) MEDIATION /2023
IN THE MATTER OF:
M/S WOODFUN
Through it’s Attorney …PLAINTIFF
V E R S U S
INDIAN OIL CORPORATION LIMITED …DEFENDANTS
AND OTHERS
S Y N O P S I S
At the outset, Plaintiff seeks the liberty of this Hon’ble Court to narrate brief facts which are essential for adjudication of the present suit:
That Plaintiff is in the business of Interior Decorators, Designers, Architects undertaking contracts of manufacturing furniture of all types and allied works.
That Defendant is Indian Oil Corporation Limited which is India’s largest integrated and diversified energy company.
That on 27.04.2011 the Defendant floated a tender No. RDCCNT1101 for the renovation of the training building at IOCL, R&D centre, Faridabad. The subject work was under two bid system (Part-I: Techno Commercial Part and Part II: Priced part) and invited applications from the confident and experienced contractors with sound technical and financial capabilities and reputations, towards qualifying requirements.
That on 10.05.2011 the Plaintiff submitted percentage rate tender for the works along with the Earnest Money Deposit - Rs. 1,69,900.00 (Rupees One lakh Sixty Nine Thousand Nine Hundred Only) with his credentials. It is pertinent to mention that the rates quoted by the Plaintiff herein were accepted by the Defendant and after getting satisfied with the credentials of the Plaintiff a fax of acceptance was issued under Reference No. RDCCNT1101 dated 20.06.2011 after duly fulfilling the qualifying criteria and a work order No. 23404196 was issued for the value of Rs. 1,60,53,062.53 (Rupees One Crore Sixty Lakh Fifty Three Thousand Sixty-Two Rupees, and Fifty-Three Paise Only) with a completion period of 6 months which was to be considered from the date of handing over of the site and thereafter on 29.06.2011 Letter of Acceptance was issued to the Plaintiff.
That the Plaintiff in compliance of the direction issued by the Defendant appeared in person on 21.06.2011, visited the site of execution areas and subsequently attended the meeting fixed on 22.06.2011 and collected the documents provided by the Defendant. That during the site visits the Plaintiff realised that the said site was preoccupied with the official staff of the Defendant, and the Plaintiff made it a priority to bring the said fact into the notice of concerned officers and inquired from them as to how the work could be executed and finished if the project site is not vacant, however the Plaintiff was informed that the site would be vacated within a day or two.
That the Plaintiff was then directed to deposit the balance of total initial security deposit i.e., Rs. 3,89,050.00 (Rupees Three Lakh Eighty Nine Thousand and Fifty Thousand Only) which was submitted along with letter dated 24.06.2011 on 30.06.2011, however the Defendant did not refund the earlier deposit EMD of Rs. 1,69,900.00 (Rupees One Lakh Sixty Ninety Thousand and Nine Hundred Only) and dragged the same for a long period of time.
That it is pertinent to mention that as soon as the Plaintiff received the work order, they mobilized their workforce and materials according to the immediate priority (first phase) work as mentioned in the Special Conditions of Contract however couldn’t complete their obligations due to non-availability of site fronts, drawings and late approvals and delayed decision making on the Defendant’s part.
The Defendant was bound down by the duty to handover the vacant site in one go to the Plaintiff herein however the Defendant miserably failed to fulfil his obligation due to the Plaintiff, and the latter then immediately sent a letter dated 24.06.2011 and made it clear that the site has not been vacated, subsequent to the said letter, 2 rooms were made available and out of which the tasks to be performed on one room were put on hold by the Defendant herein. That despite informing about the same to the Defendant, the said site was still not vacated and the Plaintiff was coerced to send one more letter to the Defendant on 11.07.2021. However, Defendant removed their old furniture and their belongings from the site occupied by them and confirmed the same by letter dated 25.11.2011. That despite requesting the Defendant to vacate their premises on several occasions and through several letters and reminders, the Defendant were unable to vacate the premises and took considerable time to shift their staff, furniture and other materials, as a result of which it was the Defendant themselves who violated their very own condition in handing over the said site within it’s completion period which expired on 28.12.2011. That the Defendant failed to provide the site for the execution of the work and Defendant agreed on the same during the meeting held on 25.01.2012 and recorded in the Minutes of Meeting and that the Defendant will take up this matterwith their Training Department.
That the Defendant themselves have pointed out and recorded in the MOM dated 10.01.2012 that due to Defendant’s IS Department approval for Data Cable is pending as a result the project work is suffering badly and the major works were put on hold even knowing all these facts the Deponent gave approval for the same on 05.03.2012 i.e., after 9 months of the work order awarded to the Plaintiff.
That it is pertinent to mention that as per the Annexure I to the Special Conditions of Contract, the time allotted to the Plaintiff for the complete construction/rennovation of 11 Twin rooms, 4 VIP Rooms, 2 VVIP Rooms, was only three months i.e upto 28.09.2011 and the balance area works were to be completed by 28.12.2011. Similarly the Defendant was under the obligation to handover the vacant site, drawings, details and approvals to the Plaintiff in order to complete the work within stipulated period but the officials of the Defendant showed laxity and failed to fulfill their obligations owing to their malafide intentions and ulterior motives.
That it is pertinent to mention that the Plaintiff herein made innumerable requests to the Defendant for his refund and sent a letter dated 16.09.2011 but all his requests were in vain. That as a result of the persistent requests of the Plaintiff, the Defendant’s Engineer-in-charge, Mr. S Sherpa wrote to the finance department for the release of the Plaintiff’s payment on 16.09.2011, however the EMD was not released on time and was subsequently paid after the span of 3 months.
That despite several correspondences by the Plaintiff with the Defendant, the Defendant did not vacate the said site and the Defendant then maliciously claimed that the Plaintiff was not able to work within the scheduled completion period of six months from the date of handing over of the site by the Defendant on 30.06.2011 despite the fact that the non-completion was a result of their non - compliance and subsequently the Plaintiff terminated the aforesaid contract with the Plaintiff in terms of 7.0.1.0 of the GCC on absolutely false, frivolous, fictitious and concocted grounds.
That the Plaintiff had specifically pointed it out to the Defendant that Data Cable were pending approval by letters dated 20.10.2011, 21.10.2011, 03.11.2011, 05.01.2012, and it is pertinent to mention that Mr. Sherpa who was the site engineer in charge pointed it out in the minutes of meeting dated 10.01.2012 that the Defendant was at fault for delaying the approval for the data cable as a result of which the project was suffering and major works were at a standstill, despite being aware of these facts the Defendant gave their approval on 05.03.2012, after 3 months of the completion period for Priority works got expired.
That the Plaintiff were not at fault at any point of time and the same is clear through the fact that it was recorded in the meeting held with Executive Director (RT) on 10.01.2012 and in the same it was clearly mentioned that M/s Woodfun were not at fault and the PMC was found guilty for all the lapses and dereliction of duty. The above mentioned meeting was conducted after the exhaustion of the completion period.
That it is pertinent to mention that the Plaintiff herein were ready to provide and fulfil all their contractual obligations and did due diligence on their part at each and every instance however it is true that the Plaintiff were not at fault at any point of time and did due correspondence with the Defendant involving material delays and gate pass issues, however the Defendant tremendously failed to fulfil it’s obligations and provide a solution to the Plaintiff’s hardships.
That the Defendant delayed the Plaintiff’s R.A. Bills on several occasions due to which the Plaintiff was coerced to do several correspondences with the Defendant however, the said correspondences were of no avail as the Defendant was indifferent to the grievances of the Plaintiff.
That in addition to not paying their dues towards the Defendant in order to create pressure on the Plaintiff and to justify their actions issued a SHOW CAUSE NOTICE dated 26.03.2012 to the Plaintiff through Mr. Sherpa Senior Maintenance Manager as coercive tactics, which was suitably replied vide reply dated 29.03.2012, however, without considering the Reply of the Plaintiff, the General Manager (FA &PJ) IOCL terminated the contract without any justified reason and by merely saying that M/s Woodfun has failed to discharge it’s contractual obligation.
That the Defendant terminated the said contract on false and frivolous grounds vide their letter dated 03.05.2012 despite being cognizant of the fact that the Defendant were themselves at fault all throughout.
That subsequent to the termination of contract by the Defendant, disputes arose between both the parties which ultimately led to the Plaintiff invoking the Arbitration Agreement by letter dated 06.12.2012.
That on 26.12.2012, the Defendant had informed the Plaintiff herein through a letter that the latter’s demand for arbitration were untenable in the absence of any arbitrable disputes within the scope or ambit of Arbitration agreement in terms with the clause 9.0.1.0 of GCC (General Conditions of Contract) since the Plaintiff’s claims were not notified claims.
That The Disputes were then referred to Shri Sk. Sarangi, General Manager of the Defendant who was appointed as the sole arbitrator selected by the Plaintiff on 15.01.2013 from the panel provided by the Defendant.
That the Sole Arbitrator appointed in terms of Contract started the Arbitration proceedings on 6th March 2013, on which both parties appeared and specifically acceded to the Jurisdiction of the Sole Arbitrator. The Sole Arbitrator had directed the Plaintiff to file his statement of Claim by 13th March 2013 and also provide a copy of the same to AR of Defendant through their office. Accordingly the statement of claim was filed on 13.03.2013. However, no reply was filed by Defendant within the prescribed time even after granting three weeks more time by the Sole Arbitrator.
That on 23.08.2013 the Defendant invoked the jurisdiction of the General Manager, Dr. B. Basu under clause 9.0.2.0 of the GCC to decide whether the claims filed by the Plaintiff were notified or unnotified claims.
That the Defendant, instead of filing the reply before the Sole Arbitrator issued five letters all together once at one stroke to derail the Arbitration Proceeding by asking Dr B Basu to decide the dispute raised by M/s Woodfun contrary to settled law as Mr S.K.Sarangi was handed over with the matter being the Sole Arbitrator.
That the Plaintiff feeling aggrieved with the action of the Defendant in not allowing the sole Arbitrator, filed a case before the District Judge Faridabad under section 9 of The Arbitration and Conciliation Act, 1961 vide Case No. (Arb case no 30/2015) on which a statement was made by the Defendant which was recorded by the Hon'ble District Judge on 18.03.2016, to the effect that "respondent had sent a panel of three arbitrator. One of them Smt. Manju Goel (Retrd. Justice Delhi High Court) has been opted by the petitioner. Respondent have no objection on her working as Arbitrator and they will send a communication to her within a week and as a result of which the Hon'ble Justice has been acting as a Sole Arbitrator and is conducting the proceedings since 01.08.2016.
That on 27.06.2019 the General Manager of the Defendant passed an order under Clause 9.0.2.0 of the GCC, and subsequently the Plaintiff herein requested the Arbitrator Tribunal to review their order but instead of being heard and being given a chance the Plaintiff’s application for review got rejected and the Plaintiff was penalized Rs. 25,000.
That it is also pertinent to mention that the Defendant through it’s Statement of Defense mentioned the fact that M/s Durga Constructions company were hired very shortly after the termination of the Plaintiffs contract which helped the Defendant to save a huge bunch of money, it is also pertinent to mention that M/s Durga Constructions Company was hired without any subsequent tenders which is very mysterious on the part of the Defendant, it is also crucial to note that M/s Durga Constructions Company were given a span of 3 months to complete the remaining project, however they couldn’t complete the project within the stipulated time, however they weren’t penalised. M/s Durga Constructions company were hired behind the back of the Plaintiff and the Plaintiff became aware about the same after 5 years of a work order being issued to them and only though the Statement of Defense filed by the Defendant on 26.07.2017, which amounts to breach of trust on the part of the Defendant, moreover it clearly portrays the Defendant’s malafide intentions towards the Plaintiff.
That the Plaintiff had carried out the entire works for which the Defendant had issued drawings, clearance and approvals. It is evident on record that without fulfilment of the contractual obligations by the client no one can timely complete the work i.e., without Site clearance, without working drawings, details and decisions. It is evident that a lot of Drawings, details and decisions were pending till the Plaintiff firm contract was alive and thereafter M/S Durga Constructions Company also could not complete their works within the completion period prescribed by the Defendant due to timely non-fulfilment of the contractual obligations by the Defendant.
That it is pertinent to mention that the Defendant through it’s officers has been taking undue advantage of the Plaintiff for a long period of time, involving turning a deaf ear to the correspondence of the Plaintiff as well as ignoring their requests.
That the acts of the Plaintiff have led to huge financial losses to the Plaintiff despite the Plaintiff having honest intentions from the beginning and the Defendant has used all means necessary to delay any sought of relief to the Plaintiff and has thus entrapped the Plaintiff in their vicious circle. That despite invoking Arbitration the Defendant has made sure that the Arbitration proceedings tend to linger on and Plaintiff gets no fruitful result whatsoever, therefore in the hopes of relief and recovery of monies the Plaintiff herein is filing the present suit.
That the Cumulative Liability of Defendant No. 1 towards the Plaintiff involves a principal amount of Rs. 2,13,56,681.00 (Rupees Two Crore Thirteen Lakh Fifty Six Thousand Six Hundred and Eighty-One Only) and interest @24% per annum i.e 5,74,20,802.00 (Rupees Five Crore Seventy Four Lakh Twenty Thousand Eight Hundred and Two Only) till 14.07.2023 to which litigation and arbitration expenses amounting to Rs. 10,00,000.00 (Rupees Ten Lakh Only) and damages caused due to mental agony amounts to Rs. 5,00,000.00 (Rupees Five Lakh Only), therefore making the total amount as Rs. 8,02,77,483 (Rupees Eight Crore Two Lakh Seventy-Seven Thousand Four Hundred and Eighty Three Only).
Through Counsel for the Plaintiff
Dr Anupam Kumar Mishra (D/4972/2015)
Lexis & Company
A-1-B/26, Janakpuri,
New Delhi – 110058
9051112233
BEFORE THE HON’BLE DELHI HIGH COURT LEGAL SERVICES COMMITTEE, JUDICATURE AT NEW DELHI
CS(COMM) MEDIATION /2023
IN THE MATTER OF:
M/S WOODFUN
Through it’s Attorney …PLAINTIFF
V E R S U S
INDIAN OIL CORPORATION LIMITED …DEFENDANTS
AND OTHERS
A F F I D AV I T
I, Mr. Gurbir Singh Makhni, S/o Balwant Singh Makhni, aged 62 years, R/o F 501, Raheja Vistas, Raheja Vihar, Opp Bombay Scottish School, Chandivali, Mumbai, Mumbai Suburban, Maharashtra - 400072 having Aadhaar Card no. 8312 7272 9211; do hereby solemnly affirm and declare as under:
That, I am Plaintiff in the above-mentioned SUIT FOR RECOVERY OF MONIES IN THE FORM OF DAMAGES CAUSED DUE TO THE CANCELLATION OF THE TENDER CONTRACT ALONG WITH ACCUMULATED INTEREST, MENTAL HARASSMENT AND LITIGATION CHARGES and I am fully conversant with the facts of the case and therefore, I am competent to sign and swear this Affidavit.
That, the Suit for Recovery is being filed before the Hon'ble Court and the same has been drawn and drafted by my Counsel, under my instructions and they are correct to the best of my knowledge and information.
That, the E-mail Id and the Mobile Number provided are in use since the last 30 days time period.
That, I have gone through the contents of the accompanying plaint and no part of it is false and nothing material has been concealed therefrom. The same may be read as part and parcel of this affidavit as the same are not being repeated herein for the sake of brevity.
DEPONENT
V E R I F I C A T I O N
I, Gurbir Singh Makhni, the above-mentioned Plaintiff do hereby verify that the contents of the Plaint of the Suit, are true and correct to my knowledge and as derived from the records of the case, no part of it is false and nothing material has been concealed therefrom.
Verified on this _______ day of _______ 2023.
DEPONENT