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Judgment
TARA VITASTA GANJU, J.: (Oral)
CM APPL. 16597/2020 [Modification]
This is an Application filed by Respondent No.1 seeking modification of order dated 05.05.2020 passed by this Court. By the said order, the present writ petition was disposed off with directions to Respondent No.1 to release the payments due to Petitioner, once Respondent No.2 provides the requisite fund to Respondent No.1.
Learned Counsel for Respondent No.1 submits that there are various issues in the contract which was awarded to the Petitioner and executed by Respondent No.1, in terms of the letter of acceptance dated 30.03.2019 in relation to construction of RUB (Road under Bridge)/ROB (Road over Bridge) at Railway Level crossing at Road No-68, near Nand Nagari, Delhi-110093.
Learned Counsel for the parties admit that the present Application would require this Court to deal with disputed questions of fact which will not be possible in a proceeding under Article 226 of the Constitution of India, 1950.
Learned Counsel for the parties further submit that the parties are now in arbitration to resolve their inter se disputes.
Learned Counsel for Respondent No.1 submits that a statement was made by Respondent No.1 in Paragraph 4 of the order dated 05.05.2020, which is set out below:
“4.The learned counsel for respondent no. 1 states that R-1 had got the work for the GNCTD and can pay-out the monies only when the same is received from the government, and in any case any such payments would be without prejudice to R-1’s rights and contentions regarding the other bills and claims, as may be.”
Learned Counsel for Respondent No.1 submits that this statement was made without prejudice on that date and this will come in their way in the arbitration proceedings where the issues of monies due to the Petitioner is to be decided in accordance with law. Learned Counsel of Respondent No.1 submits that Respondent No.1 should not be bound by this statement.
Learned Counsel for the Petitioner fairly submits that all disputes inter se the parties are being adjudicated by the Arbitral Tribunal.
Learned Counsel for the Petitioner further submits that based on the submission made in Para 4 of the order dated 05.05.2020 as on date, no claim has been raised by the Petitioner with respect to the final bill passed under the contract.
In view of the aforegoing circumstances, the following directions are passed with the consent of the parties:
Respondent No.1 will not be bound down to the statement made by their Counsel in Para 4 of the order dated 05.05.2020 before this Court.
The Petitioner shall be at liberty to file the appropriate proceedings to amend/alter its claim made.
In view of the order passed today, the Respondents undertake that they will not object to amendments so made by the Petitioner, before the Arbitral Tribunal on the ground of limitation.
It is made clear that the order passed today is without prejudice to the rights and contention of both the parties, in the arbitration proceedings inter se the parties.
The Application/Petition is disposed of in the aforesaid terms.
Parties will act based on a digitally signed copy of the order.