BEFORE THE COMMERCIAL COURT NO.

II, JAIPUR

METRO – II, AT JAIPUR BENCH, JAIPUR

CASE NO. 284/2023

RAJASTHAN URBAN INFRASTRUCTURE

DEVELOPMENT PROJECT

……..…APPLICANT-RESPONDENT

VERSUS

M/S M.S. KHURANA ENGINEERING LTD.

………..RESPONDENT-CLAIMANT

REPLY ON BEHALF OF THE RESPONDENT-CLAIMANT

TO THE OBJECTIONS PETITION UNDER SECTION 34
OF THE ARBITRATION AND CONCILIATION ACT, 1996
FILED BY THE APPLICANT-RESPONDENT.

To,

Hon’ble Chief Justice and his other Hon’ble

Companion Judges of Rajasthan High Court of

Judicature, Jaipur.

--------

MAY IT PLEASE YOUR LORDSHIPS,

The humble answering Respondent-Claimant above

named most respectfully submit their reply to the

 Objection Petition craving leave of this Hon’ble Court to file

a detail reply, if required, as under : -

PRELIMINARY OBJECTIONS

1. That, by way of the present Objection petition the

Applicant-Respondent has filed its objections to the

Award dated 19.04.2012 wherein objections have been

filed against the Issues No. 1, 8, 9 & 12 framed by the

Ld. Arbitral Tribunal. That it is relevant to mention that

under Section 34 of the Arbitration Act, the court may

either dismiss the objections filed and uphold the award,

or set aside the award if the grounds contained in sub-

sections (2) and (2-A) are made out. That the Applicant-

Respondent herein has filed the present Objection

Petition having the prayer clause as hereunder:

“It is therefore prayed that the application may

kindly be accepted. The award dated 19.04.2012 so

far as it decides the issue no. 1, 8, 9 and 12

deserves to be quashed and set aside. Any other

direction which this honourable court deems fit may

kindly be passed in the favour of the applicant

respondent.”
It is relevant to mention that the Applicant-Respondent

is seeking part quashing of the Order dated 19.04.2012.

The scope of Section 34 of the Act, 1996 is such that the

Ld. Court can only quash the award leaving the parties

free to begin the arbitration again if desired and not

partly quash the award or modify it. Therefore, the

objection petition filed by the Applicant-Respondent

deserves to be dismissed on this ground alone.

That the Applicant-Respondent has filed the present

objection petition challenging award dated 19.04.2012

to the extent of Issues No. 1, 8, 9 and 12. However, have

restricted their pleadings only to the extent of Issue No.

1 and 12. On a bare perusal of the Objection Petition, it

can be seen that there is no pleading to the effect of

showing any illegality or objection for that matter to the

extent of Issues No. 8 and 9. It is relevant to mention

that mere mention to the said issues in the objection

petition is not sufficient, the Applicant-Respondent has

to categorically establish that while examining the said

issues the award passed by the Ld. Arbitral Tribunal falls

under one of the criteria as stipulated under the Section

34(2) of the Arbitration & Conciliation Act, 1996 and the

 Objection Petition, lacks any pleading establishing any

illegality conducted by the Ld. Arbitral Tribunal to the

extent of Issues No. 8 and 9 and therefore this Objection

Petition is a desperate attempt to deprive the

Respondent-Claimant from his rightful claim without

any reason thereto and accordingly deserves to be

dismissed at the very outset.

PARA-WISE REPLY

2. That the contents of Para 1 are admitted only to the

extent that they are in consonance with the record of

the present matter. Anything contrary to the record is

not admitted and is denied. Any inference drawn

beyond the same is also denied. It is relevant to mention

that the work assigned to the Respondent-Claimant

was to be completed on or before 23.07.2003 and the

Respondent-Claimant had accordingly mobilized the

resources viz. manpower, technical administrative,

supervisory personnel, skilled and unskilled labour,

machineries, tools, plants and equipments in right

earnest with a view to complete the work within the

given time. However, due to the reasons beyond the

 control of the Respondent-Claimant the work could be

completed only on 16.10.2004 and the said delay is not

attributable to the Respondent-Claimant. It is relevant

to mention that there was an inordinate delay on part

of the Applicant-Respondent as the first set of drawing

with new alignment was issued on 25.11.2002 i.e. one

month after awarding the work and the drawings of

median wall and retaining wall were issued only on

26.05.2003. The Applicant-Respondents started

issuing the drawings from 25.11.2002 and continued

with such process till 11.06.2004 and there were many

such instances caused on the part of the Applicant-

Respondent which are categorically noted in the

pleadings of the Claimant before the Ld. Arbitral

Tribunal and are not reproduced for the sake of brevity.

3. That the contents of Para 2 are admitted only to the

extent that they are in consonance with the record of

the present matter. Anything contrary to the record is

not admitted and is denied. Any inference drawn

beyond the same is also denied.

REPLY TO THE GROUNDS

4. That the contents of Ground No. A are not admitted in

the manner stated and are vehemently denied. It is

relevant to mention that the Claimant had filed the

Claim Petition before the Ld. Arbitral Tribunal and the

Ld. Tribunal after assailing all the pleadings and

material on record and after duly applying its technical

mind ha passed a detailed and reasoned award dated

19.04.2012. It is relevant to mention that the Applicant-

Respondent is challenging the impugned award only to

the extent of Issues No. 1, 8, 9 and 12 which have been

decided in the favour of the Respondent-Claimant

seeking the award to be quashed to the extent of these

issues. However, under Section 34 of the Arbitration and

Conciliation Act, the Hon’ble Court can either allow the

objection petition and set aside the entire award dated

19.04.2012 or dismiss the objection petition and uphold

the award dated 19.04.2012. The part quashing of an

award is not permissible under the Act and accordingly

the present objection petition is not maintainable at the

very first instance and deserves to be quashed and set

aside.
5. That the contents of Ground B and C are not admitted

in the manner stated and are vehemently denied. It is

relevant to mention that the Applicant-Respondent

levied the liquidated damages precisely one year after the

completion of the said work and the same could not have

been done retrospectively. That out of the total delay of

451 days the delay of 365 days was attributable to the

Applicant-Respondent and merely a delay of 86 days was

attributable to the Respondent-Claimants and

accordingly the Applicants-Respondents could not have

levied the maximum penalty as provided in Clause 43.1.

of the contract data. However, upon assailing the

pleadings before the Ld. Tribunal and after due

application of its technical mind, the Ld. Tribunal had

categorically held that the Applicant-Respondents were

not at fault in levying liquidated damages under Clause

43.1. However, the Ld. Tribunal noted that the

Respondents while levying the liquidated damages did

not assign any reason for maximum levy. It further noted

that the Applicant-Respondent are also under the

obligation to prove loss or injury resulting from the delay

of claimants. In lack of any justification being there for

levying the maximum penalty of liquidated damages and

admittedly the Applicant-Respondent were also

responsible for causing delay of 365 days and

accordingly the cause of action accrued to both parties

against each other and in the light of the aforesaid, the

Ld. Tribunal decreased the liquidated damages. It is

relevant to mention that under the Section 34 of the

Arbitration and Conciliation Act, 1996 the Hon’ble Court

only has to examine as to whether the reasons borne out

in the award are intelligible or not. The adequacy of

reasons cannot stand in the way of making the award to

be intelligibly readable and accordingly as the Ld.

Tribunal has passed the award in Issue No. 12 after due

application of its mind, and is reasoned and intelligible,

the adequacy of such reasons cannot be scrutinized by

this Court under the ambit of Section 34 of the

Arbitration and Conciliation Act, 1996. It is relevant to

mention that the Applicant-Respondent has failed to

establish any illegality in the award dated 19.04.2012

and the present award dated 19.04.2012 being governed

by the Arbitration and Conciliation Act, 1996 prior to the

2015 Amendment does not fall in any of the conditions

as stipulated in Section 34 (2) of the Arbitration and

Conciliation Act, 1996. In light of the aforesaid, the

 present Objection Petition is not maintainable and

deserves to be dismissed.

6. That the contents of Ground E are not admitted in the

manner stated. The Ld. Tribunal after due application of

its mind has provided for an interest of 9% p.a. relying

on precedent by the Hon’ble Apex Court. It is relevant to

mention that the Hon’ble Apex Court in multiple cases

have narrowed down the extent of judicial intervention

in the awards passed by the tribunals. It is further

relevant to mention that 1996 Act was enacted to replace

the 1940 Arbitration Act in order to provide for an

arbitral procedure which is fair, efficient and capable of

meeting the needs of arbitration; also to provide that the

tribunal gives reasons for an arbitral award; to ensure

that the tribunal remains within the limits of its

jurisdiction; and to minimize the supervisory roles of

courts in the arbitral process and therefore no

interference is warranted by this Hon’ble Court in the

awarding the interest @ 9% p.a.

7. That the impugned award dated 19.04.2012 is not

contrary to the fundamental policy of Indian Law; the

 interest of India; justice or morality; and neither is

patently illegal. It is relevant to mention that the illegality

must go to the root of the matter and if the illegality is of

trivial nature it cannot be held that the award is against

the public policy. An award could also be set aside if is

so unfair that it shocks the conscience of the court. Such

award is opposed to the public policy and is required to

be adjudged void. However, none of the aforesaid criteria

is being met and accordingly the Objection Petition filed

by the Applicant-Respondent is not maintainable and

deserves to be dismissed.

8. That the contents of Ground F are not admitted in the

manner stated and are vehemmently denied. It is

humbly submitted that the Applicant-Respondent

cannot be permitted to raise additional grounds which

are not mentioned in the memo of the Objection

Petition.

9. Rest contents of the writ petition including prayer are

denied. The petitioners are not entitled to get any relief

against the answering respondents.

PRAYER
It is, therefore, most humbly prayed that:-

1. This reply to the Objection Petition may kindly be

taken on record and the Objection petition filed by

the Applicant-Claimant may kindly be dismissed with

cost and the Award dated 19.04.2012 passed by the

Ld. Arbitral Tribunal be upheld.

2. Any order or direction in the interest of justice and in

the favour of the answering respondents may kindly

be passed, which this Hon’ble Court may be deem fit

and proper under the facts and circumstances of the

case.

Humble Respondents

Through Counsel

[LIPI GARG/ ANITA SHEKHAWAT]

Enrol No. –[R/5759/2021]
Email – lipigarg98@gmail.com
Mobile No. +91- 7014928561
 NOTES:

1. That no such reply has previously been filed before this

Hon’ble Court or before the Supreme Court of India.

2. That this Reply to Objetion Petition has been typed on

stout papers as pie papers are not readily available.

3. That this Reply to Objection Petition has not been typed

by any official of this Hon’ble Court.

COUNSEL FOR THE RESPONDENTS

[LIPI GARG/ ANITA SHEKHAWAT]

Enrol No. –[R/5759/2021]
Email – lipigarg98@gmail.com
Mobile No. +91- 7014928561
 BEFORE THE COMMERCIAL COURT NO. II, JAIPUR

METRO – II, AT JAIPUR BENCH, JAIPUR

CASE NO. 284/2023

RAJASTHAN URBAN INFRASTRUCTURE

DEVELOPMENT PROJECT

……..…APPLICANT-RESPONDENT

VERSUS

M/S M.S. KHURANA ENGINEERING LTD.

………..RESPONDENT-CLAIMANT

AFFIDAVIT IN SUPPORT OF REPLY TO THE OBJECTION

PETITION

I, Shri Santosh Laxmichand Rajpal S/o Laxmichand

Rajpal, aged about 57 Years, Authorized Representative
and General Manager of M.S. Khurana Engineering Ltd.
having its address at MSK, Nr. Kashiram Bhavan, Passport
Office to Pranjirapole Road, Ambawadi, Ahmedabad –
380015, presently at Jaipur do hereby take oath and state
as under:-

1. That I appointed as Authorized Representative of the

Respondent-Claimant in the present matter and as such
am well conversant with the facts of the case.
2. That the annexed reply to the Objection Petition has
been drafted by my counsel under my instructions, the
contents thereof have been read-over and understood by
me.

DEPONENT
 VERIFICATION

I, the above named deponent do hereby verify on oath that

the contents of para 1 to 2 of my above affidavit are true
and correct to the best of my personal knowledge. Nothing
material has been concealed therein and no part thereof is
false.

DEPONENT
 BEFORE THE COMMERCIAL COURT NO. II, JAIPUR

METRO – II, AT JAIPUR BENCH, JAIPUR

CASE NO. 284/2023

RAJASTHAN URBAN INFRASTRUCTURE

DEVELOPMENT PROJECT

……..…APPLICANT-RESPONDENT

VERSUS

M/S M.S. KHURANA ENGINEERING LTD.

………..RESPONDENT-CLAIMANT

INDEX

S. No. Particular Page No.

1 Reply to Objection Petition on behalf of

Respondents

2 Affidavit in Support of Reply to

Objection Petition

COUNSEL FOR THE RESPONDENTS

[LIPI GARG/ ANITA SHEKHAWAT]

Enrol No. –[R/5759/2021]
Email – lipigarg98@gmail.com
Mobile No. +91- 7014928561