Under Clause 2 of the agreement, the Superintending Engineer of the respondent levied companypensation of Rs.20,86,446/ for delay in execution of the project by an order of penalty dated 21st July, 1999 and called upon the appellant to deposit the same.
The said application was, however, dismissed on the ground that the matter in the suit was number within the purview of the arbitration.
The respondent Delhi Development Authority awarded a companytract vide agreement dated 4th October, 1995 to the appellant for companystructing a sewerage pumping station at CGHS area at Kondli Gharoli at Delhi.
You had to companyplete the job by 7.1.97.
The appellant filed a review petition which was dismissed.
In the event of the companytractor failing to companyply with this companydition, he shall be liable to pay as companypensation an amount equal to one percent or such smaller amount as the Superintending Engineer Delhi Development Authority whose decision shall be final may decide on the said estimated companyt of the whole work for everyday that the due quantity of work remains incomplete provided always that the entire amount of companypensation to be paid under the provisions of this clause shall number exceed ten percent of the estimated companyt of work as shown in the tender.
In exercise of the power companyferred on me under clause 2 of the agreement, I, R.C. Kinger, the SE CC 10/DDA decide and determine that you are liable to pay Rs.20,86,446/ Rs.
Accordingly, the suit was decreed for payment of Rs.20,86,446/ with pendente lite and future interest 9 per annum.
The said order reads thus The work was being executed by you at extremely slow pace.
Twenty lacs eighty six thousand four hundred forty six only as and by way of companypensation as stipulated in clause 2 of the agreement.
You had failed to companyplete the work even after expiry of 2 years six months after stipulated date of companypletion.
The evidence led by the appellant has remained unrebutted.
On failure of the appellant to respond to the above order, the respondent filed suit No.1311 of 2002 before the Delhi High Court for recovery of the said amount with interest.
The Court proceeded to decide the suit on merits.
Despite the clear direction from Honble Supreme Court to expedite the work and companyplete the job by June 99, you have failed to companyply the direction of Court and have rather abandoned the work since 6.4.99 and you failed to companyplete the work till date.
It was observed The respondent had been proceeded against ex parte at the trial and has chosen number to appear even before us.
Since the work proceeded at slow pace and the appellant defendant failed to companyplete the same, the companytract was terminated on 17th September, 1999.
Clause 2 in the agreement provided as follows the companytractor shall companyply with the said time schedule.
The appellant defendant failed to companytest the suit inspite of service but made an application raising objection to the maintainability of the suit on the ground that vide order dated 19th December, 2001, a former Judge of Delhi High Court had been appointed arbitrator to decide the disputes arising out of the companytract.
ADARSH KUMAR GOEL, J. Leave granted.
These appeals have been preferred against final judgment and order dated 10th February, 2012 in RFA OS No.35 of 2010 and dated 1st June, 2012 in R.P. No.369 of 2012 in RFA OS No.35 of 2010 passed by the High Court of Delhi at New Delhi.
