BEFORE THE COURT OF LD.

PRESIDING OFFICER
COMMERCIAL COURT, GAUTAM BUDDH NAGAR

IN THE MATTER OF:

Union of India through its Executive Engineer- Haldwani,, CPWD, NSTI

Campus, Tedhi Pulia, Nainital Road, Kathgodam- 263126, (Uttarakhand).
……… Petitioner
VERSUS
M/s Jyoti Enterprises, 306, Sharma Complex, A2, Guru Nank Pura Laxmi
Nagar, Vikas Marg, New Delhi - 110092
….… Respondent

PETITION/OBJECTIONS ON BEHALF OF THE PETITIONER (UOI

THROUGH THE EXECUTIVE ENGINEER-HALDWANI,
C.P.W.D,HALDWANIUNDER SECTION 34 OF THE ARBITRATION
AND CONCILIATION ACT 1996 FOR SETTING ASIDE THE
IMPUGNED ARBITRAL AWARD DATED 28.09.2024 GIVEN BY
THE ARBITRAL TRIBUNAL/BY THE SOLE ARBITRATOR
SH.NIRANJAN KUMAR SINHAIN THE ARBITRATION CASE
BETWEEN M/S JYOTI ENTERPRISESVS UNION OF INDIA
INNKS/ARB/JE-CPWD/22

MOST RESPECTFULLY SHOWETH:

1. That the petitioner is filing instant objection Petition Under Section 34 of the
Arbitration and Conciliation Act 1996 being aggrieved of the AWARD
DATED 28.09.2024passed by Ld. Sole Arbitrator Sh. Niranjan Kumar Sinha
in ARB case no. NKS/ARB/JE-CPWD/22.Copy of the award is annexed
herewith as Annexure No.-1 to this arbitration application.

THE FACTS GIVING RISE TO THIS PETITION ARE AS UNDER:

2. That, the Petitioner, Central Public Works Department, Govt. of India states
that CPWD is 170 years old department of Govt. of India under Ministry of
Housing and Urban Affairs and is the principal agency of the Govt. of India.
It is responsible for creating assets and developing and creating
infrastructure directly or through contractors for the various departments of
Central Government. It takes comprehensive services of offices and
residential buildings as well as construction of work of various Ministry and
Govt. of India departments including judicial institution like Supreme Court
of India, various High Court, CAT and other important buildings of National
importance all over the country and even abroad.
3. That the Petitioner has floated the online tenders for the work of
Construction of Income Tax building and residential Quarters (Type-I-2 nos.
D/S Type-II-4 nos. (F/S), Type-III- 4 nos (F/S), Type-IV- 4 Nos. (F/S) &
type V 1 No. (Duplex) and guest house including internal sanitary
installation, water supply and drainage at Kashipur (Sh: C/o office building,
and development work including electrical work) executed under Agreement
No. 03/CE/EE/HCD/2016-17and a contract was executed between Union of
India and the Respondent.
4. That the salient features of the work, which has been allotted to the
respondent firm M/s Jyoti Enterprises are as under:
Estimated cost: Rs.6,90,96,369/-(including electrical work)
Tendered amount: Rs.5,54,84,385/-(including electrical work)
Actual work done by respondent: Rs. 7,88,86,957/- (including
electrical work and 10CC & 10 CA)
Date of award of work: 01/06/2016
Time allowed for completion of work: 12 months
Stipulated date of start: 03/06/2016
Stipulated date of completion 02/06/2017
 Actual Date of Completion: 08/04/2019
Final bill passed and paid on: 08/12/2021

5. That for the aforesaid work, the agreement was executed between the
parties, wherein various terms and conditions, which were relevant for the
purpose of deciding the present dispute before this Hon’ble Court, have been
mentioned. Clause 25 says about the settlement of dispute and arbitration. A
copy of agreement, which is very material for the purposes of deciding and
for setting aside the arbitral award is annexed herewith as Annexure No.-2
to this arbitration application.

6. That it is pertinent to mention here that first time application was filed by the
respondent for appointment of arbitrator on 09.09.2022and thereafter
Arbitrator, Shri Niranjan Kumar Sinha was appointed by the competent
authority of petitioner department on 29.09.2022. Arbitration proceeding
was started by the Ld. Arbitrator on 18.10.2022.
7. That the respondent contractor had submitted Statement of claims on
05.11.2022 before the Arbitrator which was received in the office of
petitioner on 03.10.2022 Copy enclosed herewith and annexed as Annexure
No.-3 wherein the respondent contractor had claimed 16 claims before the
Arbitrator as given below:
Claim No. Description of claim Claim Amount
Amount claimed as per
referred in Rs. SOC in Rs.
Claim No.1 Reimbursement of Addl.
Bank Charges incurred
for extension of Bank
2,41,218/- 2,41,218/-
Guarantee due to
prolongation of Contract
Claim No.2 Amount illegally 37,31,634/- 45,29,420/-
withheld/recovered
Claim No.3 Wrong Computation of
22,17,064/- 5,78,659/-
rates for deviated items
Claim No.4 Wrong Computation of
rates for 26,00,572/- 26,86,569/-
Extra/Substituted items
Claim No.5 Work executed & paid in
previous bill but 20,98,648/- 21,89,765/-
subsequently recovered
Claim No.6 Delay in payment of
11,68,468/- 11,68,468/-
Final bill
Claim No.7 Watch & Ward charges
for the building after 68,64,255/- 68,63,232/-
completion
Claim No.8 Reimbursement the up to
date already made GST 36,24,758/- 30,95,879/-
on payment
Claim No.9 Reimbursement under
85,84,496 69,85,776/-
clause 10C & 10CA
Claim Reimbursement under
No.10 clause 10C on work done 3,29,427/- 1,33,031/-
but not paid.
Claim Damages towards
No.11 Additional overheads due
38,47,804/-
to prolongation of 38,47,804/-
contract.
Claim Damages towards idling / 10,26,000/- 10,26,000/-
No.12 diminution in
 productivity of
machineries & T & P due
to prolongation
Claim Loss of Profit/
25,65,202/- 25,65,202/-
No.13 Profitability
Claim Declaration for payment
No.14 of GST for the above - -
claims in future.
Claim Ante-lite interest @
No.15 18o/o dale of due till date
of invocation of
arbitration i.e.
231712022, pendente lite - -
interest from date of
invocation of arbitration
to date of award & future
interest @ 2O%
Claim Cost of Arbitration &
20,00,000/- 20,00,000/-
No.16 legal Expenses

8. That Statement of Defense (SOD) was filed by the petitioner before Ld.
Arbitrator on 08.02.2023. Copy Statement of Defense (SOD) is annexed
herewith and as Annexure No.-4 to this arbitration application.

9. That the respondent filed rejoinder against SOD of the petitioner on dated
27.02.2023 Copy enclosed herewith and marked as Annexure No.-5 to this
arbitration application.

10.That having heard pleadings of both the parties during hearings held through
video conferencing on various dates and considering written submissions of
 both the parties, the Ld. Arbitrator had published arbitral final award dated
28.09.2024which was received in office of the petitioner on 04.10.2024
respectively.
11.The Ld. Sole Arbitrator, awarded the amount as given below :
S.N Claim Claim Claim Amount Award
o. No. Amount as claimed as Amount
per per SOC in
reference Rs.
1. Claim Reimbursement of
No.1 Addl. Bank
Charges incurred
for extension of 2,41,218/- 2,41,218/- 1,71,932/-
Bank Guarantee
due to prolongation
of Contract
2. Claim Amount illegally
No.2.1 withheld/recovered 37,31,634/- 45,29,420/- 1,22,200/-
3. Claim Wrong 22,17,064/- 5,78,659/- 46,522/-
No.3 Computation of
rates for deviated
items
4. Claim Wrong
No.4 Computation of
rates for 26,00,572/- 26,86,569/-
Extra/Substituted NIL
items
5. Claim Work executed & 20,98,648/- 21,89,765/- NIL
No.5 paid in previous bill
but subsequently
 recovered
6. Claim Delay in payment
11,68,468/- 11,68,468/- 1,71,231/-
No.6 of Final bill
7. Claim Watch & Ward
No.7 charges for the
68,64,255/- 68,63,232/- 9,17,643/-
building after
completion
8. Claim Reimbursement the
No.8 up to date already
36,24,758/- 30,95,879/- NIL
made GST on
payment
9. Claim Reimbursement
No.9 under clause 10C & 85,84,496 69,85,776/- 3,22,522/-
10CA
10. Claim Reimbursement
No.10 under clause 10C
3,29,427/- 1,33,031/- NIL
on work done but
not paid.
11. Claim Damages towards
No.11 Additional
overheads due to 38,47,804/- 38,47,804/- 8,36,700/-
prolongation of
contract.
12. Claim Damages towards
No.12 idling / diminution
in productivity of
10,26,000/- 10,26,000/- NIL
machineries & T &
P due to
prolongation
 13. Claim Loss of Profit/
25,65,202/- 25,65,202/- NIL
No.13 Profitability
14. Claim Declaration for
No.14 payment of GST for
- - -
the above claims in
future.
15. Claim Ante-lite interest @
No.15 18o/o dale of due
till date of
invocation of
arbitration i.e.
231712022,
- - -
pendente lite
interest from date
of invocation of
arbitration to date
of award & future
interest @ 2O%
16. Claim Cost of Arbitration 2,00,000/-&
20,00,000/- 20,00,000/-
No.16 & legal Expenses 2,97,000/-
Plus GST
Total 4,08,99,546/- 3,79,11,023/- 30,85,750/-

12.That having received arbitral award published by Sole Arbitrator, the

petitioner department had sought legal advice from Legal Counsel dated
10.10.2024 (Copy enclosed) and from Ministry of Law & Justice,
Department of Legal Affairs, Delhi (DoLA) which was received in the office
of petitioner on17.10.2024.Thereafter arbitral award was sent to competent
authority of the petitioner department for acceptance/challenge it in Hon’ble
 Court of Law. The Competent authority of petitioner department vide letter
no.23(102)/DRC-ITO-Kashipur/v-fHk-dk@¼pa½fu-e-
Vh,ylh½@1976fg-dated 13.12.2024 has decided to challenge the amount
awarded by Ld. Arbitrator in respect of Claim No.1,3,7, 11 and interest
under claim 15 because Ld. Arbitrator has wrongly decided and
misconceived the terms and conditions of agreement.

13.That the petitioner files petition for setting aside this impugned arbitral
award published by Ld. Arbitrator in respect of Claim No. 1,3,7,11 and
interest under claim 15of the respondent under Section 34.

14.That the impugned Award dated 28.09.2024passed by the Ld. Sole

Arbitrator in favour of the respondent contractor and against the petitioner is
wrong in law and is not legally sustainable on the following grounds
amongst other.

GROUNDS TO CHALLENGE THE AWARD:

A. Because the Ld. Arbitrator has miserably failed to appreciate that the
respondent company has breached its contractual obligation and did not
complete the awarded work even after the lapse of stipulated period.
B. Because the findings returned by Ld. Arbitrator are nor sustainable on the
basis of material on the record and on the basis of evidence produced by the
petitioner.
C. Because the impugned Award is patently illegal as the same is beyond the
terms of the Agreement. The impugned Award has gone beyond the terms
and conditions of the Agreement.

D. Because the Ld. Arbitrator has failed to appreciate the fact that the Ld.
Arbitrator has no discretion to exercise and has to adjudicate the disputes in
the four corners of the contract agreement.
E. Because the Ld. Arbitrator has failed to appreciate the fact that the Scope
under Section 34 has been elaborately defined in the following judgments
of the Hon’ble Supreme Court:
It has been held by the Hon’ble Supreme Court in the case of ‘Oil and
Natural Gas Corporation vs SAW pipes ltd.’2003 S.C.2629, in para no.30
inter alia held as follows:
“Hence, in our view in addition to narrower meaning given to the term
'public policy' in Renusagar's case (supra) it is required to be held that the
award could be set aside if it is patently illegal. Result would be--award
could be set aside if it is contrary to:-
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality, or
(d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is of trivial
nature, it cannot be held that award is against the public policy. Award
could also be set aside if it is so unfair and unreasonable that it shocks the
conscience of the Court. Such award is opposed to public policy and is
required to be adjudged void.

F. Because the impugned Award is in conflict with basic notions of Justice as

such liable to be set aside being opposed to public policy. The Impugned
award is vitiated by the patent illegality appearing on the face of the Award
as such the Impugned Award is liable to be set aside.

SPECIFIC GROUND FOR CHALLENGE THE CLAIM-WISE

AWARD:

GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO.1:

G. Because the Clause 1 of the Agreement provides that:

“The Performance Guarantee shall be initially valid up to the stipulated

date of completion plus 60 days beyond that. In case the time for completion
of wok gets enlarged, the contractor shall get the validity of Performance
Guarantee extended to cover such enlarged time for completion of work.
After recording of the completion certificate for the work by the competent
authority, the performance guarantee shall be returned to the contractor,
without any interest”.

As per the provisions of agreement cited above, Respondent has to validate

performance guarantee extended for enlarged time. If he want to proceed
with the work. Accordingly, the Respondent revalidated bank guarantees
during the extended period and never raised any question of interest. The
bank guarantee was revalidated on 23.11.2017 and then again on 22.11.2018
but Respondent never raised this issue of charges as well as interest till
invoke of clause-25 dated 27.01.2022. Hence claim is time barred and
cannot be arbitrary.

Although the work was delayed solely due to non-mobilization of the proper
resources like submission of structural drawing, submission of labour
license, ESIC, EPFO certificates adequate machinery, materials, manpower
etc. commensurate with requirement of the work in unplanned manner and
also due to furnishing defective drawings which took a long time. Certain
defects were also notified by the Petitioner which were not make good by
the Respondent due to which Petitioner is not able to issue the completion
certificate. Hence delay was fully attributed to the Respondent but on the
basis of their earnest request and willful submission of a free consent by
Respondent on the body of application form for EOT part-I.
 Petitioner showing generosity and whole heartedness, did not levied any
compensation for the delay attributed to Respondent and granted EOT
without levy of compensation under clause-2 of the contract. Therefore, this
claim again shows the fraudulent, deceitful and malicious intent of
Respondent to get undue benefit by submitting false and distorted facts to
mislead the Ld. Arbitral Tribunal.

The said clause is very specific wherein it is clearly mentioned that after
completion of work PBG will be returned without any interest.

Interest is nothing but a kind of damages. Here, the Ld. Arbitrator has
awarded the expenses incurred by the Respondent on the renewal of the BG
charged by the bank. Those expenses awarded in the form of damages are
not in consonance with the spirit of the clause. Not only this, at the time of
getting the BGs renewed till the entire currency of contract, no such
claim/letter claiming the expenses as damages was ever moved to the
Petitioner.

GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO. 2.

H. The Ld. Arbitrator has allowed bank charges @ 2% per annum on bank
guarantee extension i.e. Rs. 1,02,646/- and allowed interest @9% per
annum on the loss of interest i.e. Rs. 69,286/- and total award against this
claim is Rs. 1,71,932/- Ld. Arbitrator has failed to appreciate all the above
facts and judgments cited and argued. The impugned Award is in conflict
with basic notions of Justice as such liable to be set aside being opposed to
public policy. The Ld. arbitrator did not consider seriously the terms &
conditions of the agreement for this claim that clearly says that the
Contractor has to increase the validity of BG for extended period as per
contract. Hence, the finding of The Ld. Arbitrator is erroneous as , the
 finding of Ld Arbitrator with regard to the claim no.1is absolutely erroneous
and liable to be set aside.
GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO. 3.

I. Because the Clause 12 of the agreement prescribed a period of 15 days from

the instruction or occurrence of the item. If within said prescribed period no
analysis of rate submitted along-with documents than as per clause 12.4 of
the GCC contractor has deemed to waived his right for claim. The clause
12.4 which is reproduce as under:-“The contractor shall send to the
Engineer-in-Charge once every three months, an up to date account giving
complete details of all claims for additional payments to which the
contractor may consider himself entitled and of all additional work ordered
by the Engineer-in-Charge which he has executed during the preceding
quarter failing which the contractor shall be deemed to have waived his
right.”
The said claim is in respect of the disputes in deriving the rates of Deviated-
items. The rates of the items were derived as per provisions of the
agreement, i.e. clause 12. The Respondent never submitted the Analysis of
Rates as per provisions of clause 12. when the AR is not submitted as per
provisions of clause 12, Respondent could not be entitled for the payment of
deviated items and the rates which have been derived by the Competent
Authority are the final rates.

GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO. 4.

J. Because the Ld. Arbitrator failed to consider the, judgment of Delhi High
Court namely “Narain Das Israni Vs DDA”passed on 28.10.2005 which
was submitted by the petitioner in support of the argument but ignoring the
same, allowed the claim particularly when the finding of the arbitrator at
point (ix) at page 47 of the award that “The Respondent cannot reduce the
agreed rate” is not in line with the clause because the deviated items are
 subject to market rates where the market rates may be less or more than the
agreement rate. Therefore, the finding of Ld Arbitrator with regard to this
claim is erroneous and liable to be set aside.
GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO.7
K. Because, the Ld. arbitrator has allowed the claim for keeping the watch &
ward for the period from 10.02.2021 to 31.03.2022. The ld. arbitrator vide
para 12 at pg. 72 of the award has itself mentioned:
“As the claimant had to share the details of expenses incurred on watch &
ward with the Respondent during its deployment, & details are without
any contemporary verification, the details submitted by the claimant
cannot be accepted in toto.”
The Respondent failed to remove the many defects which were informed by
Petitioner letter 19.03.2019. The completion certificate was also issued
provisionally as the same mentions earlier in Statement of Defence (SOD)
various times and due to non-removal of defects by the Respondent the said
building was not taken over by the client. “However, if there are any
outstanding defects/deficiencies as pointed out during previous inspections
by inspecting officers, quality assurance team and by client department at
the time of taking over” but the Respondent failed to make good these
defects which were duly informed to the Respondent vide letters. Hence the
delay in handing over of the building was solely due to negligence of the
Respondent.
The Ld. Arbitrator only on presumption allowed this claim. The Ld.
Arbitrator has completely ignored the contentions of the Petitioner. It was an
admitted fact that item of STP was not executed by the Respondent up to the
date of taking over of the building then how the work could be treated as
complete. Non-execution of the item of STP till the taking over of the
building proves that the work was not complete at all. It is also a fact that the
 Respondent has not executed the item of STP which was got executed at the
risk and cost of the Respondent as has been mentioned under para (v) at pg.
70 of the award. Moreover, the Respondent has not rectified the defects
despite the letters dated 19.03.2019, 27.07.2019, 03.08.2019, 19.07.2021,
26.07.2021 and 13.09.2021 and due to these defects, the final certificate of
completion was not issued. The Condition no. 27 at pg. 68 of the agreement,
it is specific that watch & ward is the responsibility of the contractor till the
building is handed over to the department. The late taking over of the
building is for the reason that item of STP was not executed. Hence, the
building was not taken over by the department as such question of taking
over the building does not arise. Therefore, the finding is erroneous and
liable to be set aside as the same is against this claim is against the natural
justice and also against public policy. The Tribunal has adopted arbitrary
method to enrich the respondent by violating every aspect of contract
conditions, & public expenditure guidelines.
GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM NO.11
L. Because, in the contract matters the time is the essence of the contract.
Petitioner were very much concerned about the progress and pace of work as
evident from various correspondence in available on record in black in
white. It was brought to kind notice of Ld. Arbitrator that inspite of repeated
request and directions from the Petitioner to complete work in a time bound
and satisfactory manner, the Respondent choose to continue with its limited
resources for the tendered work in an unplanned manner and resultantly
failed to carrying out the tendered work in a time bound and satisfactorily
manner. Petitioner repeatedly requested to the Respondent to expedite the
progress of work by ensuring availability of sufficient material, and
manpower at site, so that work can be completed within the targeted period.
 Petitioner always given all necessary decisions as and when asked by the
Respondent. The Petitioner never failed to fulfill their primary obligations
and reciprocal promises in terms of contract, but Respondentwas not keen to
complete the work within stipulated time. So they have used to delaying the
initial activities like mobilization of site, submission of various documents
to start the work like labor license, ESIC, EPF etc. It is also submitted that
the submission of structural drawings in given time frame was under the
Respondent part as per agreement condition page no. 13 S8l.no. 4. After the
award of work the Site was handed over to the Respondent on 03.06.2016 as
per site order book and subsequently architectural drawing were handed over
to Respondent. It may also be seen from register of drawings as that clearly
shows that architectural drawings were handed over to Respondent on
20.06.2016. Hence there is no any delay from the Petitioner side in issuing
of architectural drawings. The whole delay was caused by the respondent
contractor as it is an admitted fact by contractor when he was granted Final
EOT only on the basis of free consent given by the Respondent on
application form for EOT Part-I as “Certified that due to this delay in the
work I have not faced any direct or indirect loss and I undertake not to
claim anything extra on this account” and now Respondent cannot escape
just to avail undue, unethical benefits. Here Respondent has again shown his
greedy attitude and turned down his own commitment for not to pursue any
claim on account of delay in work but this fact has been overlooked by the
Ld. Arbitrator.
M. Because, it is respondent who had not executed the work in right earnest and
willfully prolonged its completion to fulfill their ill will to drag the money
from escalation and arbitration by submitting false and distorted fact etc. It is
the Respondent, who in the first instance, enlarged the time limit for
completion of tendered work, whatever delay has occurred in the whole
episode is on the part of the Respondent and is nothing but an added peril and
delay, if any, on the part of petitioner is just because of force majeure.
Although delay was fully attributed to the Respondent but on the basis of
earnest request and willful submission of a free consent by Respondent on
the body of application form for EOT part-I which is reproduced as under.

“Certified that due to this delay in the work I have not faced any direct or
indirect loss and I undertake not to claim anything extra on this account”

It means Petitioner showing generosity and whole heartedness, did not

levied any compensation for the delay attributed to Respondent and EOT
was granted without levy of compensation under clause-2 of the contract.
Therefore, this claim again shows the fraudulent, deceitful and malicious
intent of Respondent to get undue benefit by submitting false and distorted
facts to mislead the Ld. Arbitral Tribunal.

From the above it is clear that time was essence of the contract which was
never refuted by the Respondent nor any objections were raised. Therefore,
time was essence of the said agreement.

As the claimant failed to sought extensions timely therefore extensions

under clause 5.4 were given to Respondent. The Unilateral extension are
also having binding effect as per clause 5.4 of the GCC, the relevant extract
of the said clause is as under:

“Non application by the contractor for extension/rescheduling of the

milestones shall not be a bar for giving a fair and reasonable extension
/rescheduling of the milestone by the authority as indicated in Schedule ‘F’
and this shall be binding on the contractor.”

The Ld. Arbitrator has allowed the claim for damages which are the subject
matter of this claim. It is revealed from the award to this claim that the ld.
arbitrator at pg. 110 of the award has mentioned that resources of the
Respondent like labor, employees, etc. remained idle, under-utilized for the
prolonged period. The ld. arbitrator has not considered the undertaking of
the Respondent on EOT proforma and at its own gave a finding that the
same was not voluntary. It is a fact that no evidence has been led by the
Respondent that this undertaking was due to financial duress or for any other
reason. A bald statement is not enough to prove that the undertaking is under
duress, coercion or financial crunches as has been dealt with by the Hon’ble
Supreme Court as has been held in the matter of Union of India Vs. Master
Construction reported in 2011 (2) ALR wherein vide para 24, the Court has
held as under:

“ In our opinion, there is no rule of the absolute kind. In a case where the
Claimant contends that a discharge voucher or no-claim certificate has
been obtained by fraud, coercion, duress or undue influence and the other
side contests the correctness thereof, the Chief Justice/his designate must
look into this aspect to find out at least, prima facie, whether or not the
dispute is bona fide and genuine. Where the dispute raised by the claimant
with regard to validity of the discharge voucher or no-claim certificate or
settlement agreement, prima facie, appears to be lacking in credibility,
there may not be necessity to refer the dispute for arbitration at all. It
cannot be overlooked that the cost of arbitration is quite huge - most of the
time, it runs in six and seven figures. It may not be proper to burden a
party, who contends that the dispute is not arbitrable on account of
discharge of contract, with huge cost of arbitration merely because plea of
fraud, coercion, duress or undue influence has been taken by the
claimant. A bald plea of fraud, coercion, duress or undue influence is not
enough and the party who sets up such plea must prima facie establish the
same by placing material before the Chief Justice/his designate. If the
 Chief Justice/his designate finds some merit in the allegation of fraud,
coercion, duress or undue influence, he may decide the same or leave it to
be decided by the Arbitral Tribunal. On the other hand, if such plea is
found to be an after-thought, make-believe or lacking in credibility, the
matter must be set at rest then and there.”

Hence, the finding with respect to undertaking on EOT is against the law.
The Ld. Arbitrator has mentioned the judgment of Hon’ble Supreme Court
in the matter of Mc Dermott vs Burn Standard and other case laws that were
referred but have not been given any reasoning in not relying upon the same.
The relevant paras of McDermott case (supra) have been mentioned by the
ld. arbitrator at (xii) at pg. 105 of the award. At the same time, the judgment
of Delhi High Court in the matter of Ircon vs. DMRC. As after every
extension of time, no right was reserved by the Respondent. Hence, since the
finding for this claim is against the legal position so needs to be challenged.

The claim no. 11 is for damages only and the same have been allowed by the
ld. arbitrator on presumption not based on evidence on record & is in
violation of law, so needs to be challenged.

In view of the above, the finding of the Ld Arbitrator with regard to this
claim is erroneous and liable to be set aside.

GROUNDS FOR CHALLENGE OF AWARD AGAINST CLAIM

NO.15.

N. Because from the perusal of material produced before Ld. Arbitrator it is

clear that all the above claims of the Respondent are hypothetical, baseless,
misleading and unacceptable on the land of law.It means Respondent have
unnecessarily dragged the Petitioner in the arbitration process and wasting
valuable time of the Petitioner. Without prejudice to the submission above it
 is submitted that the prevailing Bank interest is hardly 5-6% per annum, as
per current interest rate of central banks. The interest rate @9% per annum
given by the Ld. Arbitrator is hypothetical and not justified. Since all
payment due contractually have already been paid timely to the Respondent
therefore question of payment of interest doesn’t arise.
The Ld. Arbitrator has allowed the pre suit interest which is in violation of
law became for pursuit interest, notice u/s 3(1)(b) of the Interest Act is a
condition precedent. No such notice was ever served. Hence, for pre suit
interest, the finding is erroneous. The issue of pursuit interest is dealt with
by the Hon’ble Supreme court in the matter Superintending Engineer and
Ors. Vs. B. Subba Reddy reported in AIR 1999 SC page 1747 and their
lordships vide para 1 page 3 has held as under:
“There is nothing on the record to show as to how the respondent could
claim interest whether under the agreement or under the Interest Act by
giving the name of damages, when, in fact it is claim of interest it cannot be
permitted. Award of Rs. 38,250 as damages has to be set aside.”
It is submitted that claims not admissible in view of the facts/ replies given
against each claim. Hence the respondent is not entitled of interest against
for amounting to Rs. 30,85,750/-. Therefore, the finding of Ld. arbitrator for
pre suit interest is erroneous, illegal arbitrary and liable to be set-aside.3

O. Because, the impugned Arbitral award in question is absolutely illegal in

that basis on no evidence and is, thus, outright perverse, therefore, the same
is in conflict with the public policy as contemplated by Sec. 34 (2) (b) of the
Act.

PRAYER
 In view of the above-mentioned facts and circumstances and in the interest
of justice, it is, therefore, most respectfully prayed that this Hon`ble Court
may kindly be pleased to:
This Hon’ble Court be also please to call for original arbitral record from the
I. Please to set aside the impugned Arbitral Award dated 28.09.2024 passed
by the Ld. sole Arbitrator Sh. Niranjan Kumar Sinha in the Arbitration
case between M/S JYOTI ENTERPRISES VS UNION OF INDIA.
II. Please to dismiss all the disputed claims of the Respondent /Claimant with
cost.
III. Further pass such other or further orders in favour of the petitioner and as
may be deemed appropriate in the facts and circumstances of the case.

Dated Executive Engineer-Haldwani

CPWD, Haldwani
Through its Counsel

V.K. Kaparuwan
Counsel for the Petitioner

VERIFICATION:

Verified at Haldwani this Day of December, 2024 that the contents of

para no. to of the above petition are true to my personal knowledge, no
part of the same is false and nothing material has been concealed therefrom,
and contents of paras to are believed to be true and correct on the
information received by me. The documents filed are true photocopies of
their respective originals/office copies.
(Ajay Mittal)
 BEFORE THE COURT OF LD. PRESIDING OFFICER
COMMERCIAL COURT, GAUTAM BUDDH NAGAR

(COMMERCIAL) CASE NO. OF 2025

(UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996)
AFFIDAVIT
IN THE MATTER OF:

UNION OF INDIAThrough, The Executive Engineer- CPWD, Haldwani

...PETITIONER

VERSUS
M/S JYOTI ENTERPRISES ...RESPONDENT
Affidavit of Shri Ajay Mittal (male)
aged about 36 years S/o Shri Satish
Chandra Mittal presently posted as
Executive Engineer, CPWD, Haldwani,
Nainital , Uttarakhand

I, the deponent named above hereby solemnly affirm and state on oath
as under:
1. That the deponent is duly authorized representative of the applicant
Shri Ajay Mittal
2. That the applicant filed an application before the Ld. Court alongwith
his petition. The averment made in the said application and affidavit
filed alongwith the same are true and correct and are liable to read and
understood as an integral part of this affidavit, which are not being
repeated herewith for the sake of brevity.
3. That the petition has been filed by the deponent before this Ld. Court,
seeking stay upon the effect and operations of award dated 28.09.2024
issued by the respondent before this Ld. Court, till the final
determination by the Arbitral Tribunal.
4. That the deponent has a good prima facie case in its favour and
balance of convenience also lies in favour of the deponent.
5. That no prejudice shall be caused to either of the parties in caset he
operation and effect of award dated 28.09.2024 issued by the
respondent.
6. That the arbitration application filed by the deponent is liable to be
allowed

DEPONENT
Verification:
I the above named deponents do hereby verifies that the contents
of paragraphs no. 1 to 2 are true to my knowledge , while those to
paragraphs 3 to 6 are based on legal advise and records. Nothing
material has been concealed herewith and no part of it is untrue.
SO, HELP ME GOD. Verified at Haldwani on April, 2025

………DEPONENT
 BEFORE THE COURT OF LD. PRESIDING OFFICER
COMMERCIAL COURT, GAUTAM BUDDH NAGAR

ARB (COMMERCIAL) CASE NO. OF2024

(UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996)
IN THE MATTER OF:
STAY APPLICATION

UNION OF INDIAThrough, TheExecutive Engineer- CPWD, Haldwani

...PETITIONER
VERSUS
M/S JYOTI ENTERPRISES ...RESPONDENT

The Humble Application of the above named applicant/petitioners most

respectfully showeth as under:

1. That the full facts and circumstances of the case have been disclosed in
the accompanying Application/Petition filed U/s 34 of the Arbitration and
Conciliation Act, 1996 which shall form part of this application.

2. That the stay application is being filed on basis of the facts and grounds of
the petition and are not repeating the same for the sake of brevity and
shall be treated the averments of the stay application.

3. That it is necessary in the interest of justice that this Hon’ble court stay
the effect and operations of impugned Arbitral Award dated 28.09.2024
passed by the Ld. sole Arbitrator Sh. Niranjan Kumar Sinha in the
Arbitration case between M/S JYOTI ENTERPRISES VS UNION OF
INDIA otherwise the petitioner shall suffer irreparable loss and injury.

PRAYER
It is, therefore, Most Respectfully prayed that this court
Hon’ble stay the effect and operations of impugned Arbitral Award dated
28.09.2024 passed by the Ld. sole Arbitrator Sh. Niranjan Kumar Sinha in
the Arbitration case between M/S JYOTI ENTERPRISES VS UNION OF
INDIA otherwise the petitioner shall suffer irreparable loss and injury.

Dated: 2025
Executive Engineer-Haldwani
CPWD, Haldwani
Through its Counsel

V.K. Kaparuwan
Counsel for the Petitioner

VERIFICATION:

Verified at Haldwani this Day of April, 2025 that the contents of para no.
to of the above petition are true to my personal knowledge, no part of the
same is false and nothing material has been concealed there from, and
contents of paras to are believed to be true and correct on the
information received by me. The documents filed are true photocopies of
their respective originals/office copies.

(Ajay Mittal)
 BEFORE THE COURT OF LD. ADJ/ PRESIDING OFFICER
COMMERCIAL COURT, GAUTAM BUDDH NAGAR

ARB (COMMERCIAL) CASE NO. OF 2024

(UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996)
AFFIDAVIT
IN
STAY APPLICATION
IN THE MATTER OF:
UNION OF INDIAThrough, The Executive Engineer- CPWD, Haldwani
...PETITIONER

VERSUS
M/S JYOTI ENTERPRISES ...RESPONDENT
Affidavit of Shri Ajay Mittal(male)
aged about 36 years S/o Shri Satish
Chandra Mittalpresently posted as
Executive Engineer, CPWD, Haldwani,
Nainital , Uttarakhand

I, the deponent named above hereby solemnly affirm and state on oath
as under:
7. That the deponent is duly authorized representative of the applicant
Shri Ajay Mittal
8. That the deponent is well aware of all the facts right from the begining
9. That the petition has been filed by the deponent before this Ld. Court,
seeking stay upon the effect and operations of award dated 28.09.2024
issued by the respondent before this Ld. Court, till the final
determination by the Arbitral Tribunal.
10.That further the deponent is competent to swear and sign the present
affidavit.
11.That the deponent may also be read of part of this affidavit.
 DEPONENT
Verification:
I the above named deponents do hereby verifies at Haldwani on
April, 2025
That the contents of Para no 1 to 4 are true to my knowledge and
belief.

………DEPONENT
 BEFORE THE COURT OF PRESIDING OFFICER COMMERCIAL
COURT, GAUTAM BUDDH NAGAR

DELAY CONDONATION APPLICATION NO. OF 2025

ARB (COMMERCIAL) CASE NO. OF 2025
(UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996)

IN THE MATTER OF:

Union of India through its Executive Engineer- Haldwani,, CPWD, NSTI

Campus, Tedhi Pulia, Nainital Road, Kathgodam- 263126, (Uttarakhand).
……… PETITIONER
VERSUS
M/s Jyoti Enterprises, 306, Sharma Complex, A2, Guru Nank Pura Laxmi
Nagar, Vikas Marg, New Delhi - 110092
….… RESPONDENT

The Humble Application of the above named applicant/petitioners most

respectfully showeth as under:

1. That the above Arbitration case has been filed challenging the
impugned award dated 28.09.2024 passed by Ld. Sole arbitrator in the
matter of Arbitration Case. M/s Jyoti Enterprises Vs. Union of India.
2. That against the impugned award dated 28.09.2024 earlier the
applicant/petitioner filed an Arbitration Petition before Commercial
Court/ Firstt Additional District Judge, Haldwani which was registered
on 24.12.2024 Misc. Case No. 115 of 2024” Union of India Vs. Jyoti
Enterprises.
3. That on 17.01.2025 the said Misc. Case was decided by the Ld.
Commercial Court/ Ist Additional District Judge, Haldwani whereby
 returned the plaint of petitioner to file the same before the competent
court having jurisdiction. The certified copy of the order dated
17.01.2025 is being filed as Annexure No.1 to this delay condonation
application.
4. That thereafter the order dated 17.01.2025 passed in Misc. Case No.
115 of 2024 was challenged before Hon’ble High Court of Uttarakhand
at Nainital, in WPMS No. 894 of 2025 “Union of India Vs. M/s Jyoti
Enterprises”.
5. That the said writ petition was dismissed by Hon’ble High Court of
Uttarakhand at Nainital vide its judgment dated 01.04.2025 whereby
confirmed the order dated 17.01.2025 passed by Ld. Commercial Court
Haldwani in Misc. Case No. 115 of 2024, The certified copy of the
order dated 01.04.2025 is being filed as Annexure No.2 to this delay
condonation application.
6. That after the judgment passed by Hon’ble High Court of Uttarakhand
at Nainital, further legal opinion was sought from Standing Counsel,
Govt. of India who in his opinion suggested to filed the Arbitration
Case before Hon’ble court
7. That thereafter the applicant prepared the instant Arbitration Case to
file the same before Hon’ble Court challenging the impugned award
passed by Ld. Sole Arbitrator.
8. That the delay occasioned in filing the petition / Arbitration Case is not
deliberate but the same is due to the reason of legal process initiated by
the petitioner and therefore the petitioner/ applicant is entitled to get the
benefit of Sec. 14 of the Limitation Act, 1963 and delay is liable to be
condoned.
 9. That there is delay of…….. days in filing the above arbitration case/
petition before Hon’ble court which is not deliberate and intentional
but the same is due to bonafide in the part of applicant / petitioner and
delay in filing above Arbitration Case/ petition is liable to be condoned.
10. That it is necessary in the interest of justice that this Hon’ble court may
graciously be pleased to allow the delay condonation application and
condone the delay of days and please to hear the Arbitration
Case/ Petition on merits, against the impugned award dated 28.09.2024
passed by Ld. Sole Arbitrator in the matter of M/s Jyoti Enterprises vs.
Union of India.

PRAYER
11. It is, therefore, Most Respectfully prayed that this Hon’ble court may
graciously be pleased to allow the delay condonation application and
condone the delay of days and please to hear the Arbitration
Case/ Petition on merits, against the impugned award dated 28.09.2024
passed by Ld. Sole Arbitrator in the matter of M/s Jyoti Enterprises vs.
Union of India., otherwise the applicant shall suffer irreparable loss and
injury.

Dated : / /2025

(V.K.Kaparuwan)
Advocate
Counsel for the Appellant
 BEFORE THE COURT OF LD. PRESIDING OFFICER
COMMERCIAL COURT, GAUTAM BUDDH NAGAR

ARB (COMMERCIAL) CASE NO. OF 2025

(UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996)
AFFIDAVIT
IN
DELAY CONDONATION APPLICATION
IN THE MATTER OF:

UNION OF INDIA Through, The Executive Engineer- CPWD, Haldwani

...PETITIONER

VERSUS
M/S JYOTI ENTERPRISES ...RESPONDENT

Affidavit of Shri Ajay Mittal (male)

aged about 36 years S/o Shri Satish
Chandra Mittalpresently posted as
Executive Engineer, CPWD, Haldwani,
Nainital , Uttarakhand

I, the deponent named above hereby solemnly affirm and state on oath
as under:

12.That the deponent is duly authorized representative of the applicant

Shri Ajay Mittal
13.That the deponent is well aware of all the facts right from the
beginning
14.That the petition has been filed by the deponent before this Ld. Court,
seeking stay upon the effect and operations of award dated 28.09.2024
 issued by the respondent before this Ld. Court, till the final
determination by the Arbitral Tribunal.
15.That there is a delay of days in the matter and the reasons of the
delay are already been disclosed in the delay condonation application
16.That further the deponent is competent to swear and sign the present
affidavit.
17.That the deponent may also be read of part of this affidavit.

DEPONENT
Verification:
I the above named deponents do hereby verifies at Haldwani on
of April 2025
That the contents of Para no 1 to 4 are true to my knowledge and
belief.

………DEPONENT