BEFORE SH. KAMLESH KUMAR, DISTRICT JUDGE (RETD.

),
LD. SOLE ARBITRATOR, DELHI INTERNATIONAL
ARBITRATION CENTRE (DAC), DELHI HIGH COURT, SHER
SHAH ROAD, NEW DELHI-110001, MOB: 9971208844

CASE REFERENCE No.DIAC/5056/09-22

IN THE MATTER OF:-
M/s. CSE INFRA … CLAIMANT
VERSUS
UNION OF INDIA … RESPONDENT

REJOINDER TO THE REPLY TO COUNTER CLAIM FILED ON

BEHALF OF THE RESPONDENT/UOI
******
MOST RESPECTFULLY SHOWETH:-
REJOINDER TO THE PRELIMINARY SUBMISSIONS/
OBJECTIONS:-

1. That the contents of Para No.1 of the preliminary submissions/

objections, as stated, are wrong, hence, denied. It is specifically
denied that the counter claims do not constitute an arbitral dispute,
as the alleged counter claims were never demanded or raised before
being filed before the AT nor even reference thereof to arbitration
was sought, except suo-moto reference of claim for PG amount by
the General Manager of the respondent either before reference of
dispute to arbitration or before the Court or otherwise, till filing
before the AT on or about 07.08.2023, as alleged. It is further
denied that the counter claims, more particularly counter claim
No.2 for security deposit amount and for that matter even for
alleged encashment of the PG amount neither any demand had ever
 - 2 -

been made nor any loss had ever been pleaded and are not only
afterthought and concocted by way of counter blast, beyond the
jurisdiction of the AT having not been claimed before appointment
of the AT, as alleged. It is further denied that counter claim No.2 to
4 have neither been referred nor there is any notice for demand for
counter claims or any nature prior to unilateral reference against,
which the claimed amount of PG could be adjusted, as alleged. It is
specifically denied that almost all the contents of and allegations
made by way of counter claims are the same, as alleged in the SOD
by the respondent to the SOC of the claimant. However, it is
submitted that the averments made in the counter claim as well as
SOD may be read as part and parcel of reply to this Para also, as
the same are not being repeated herein for the sake of brevity. It is
submitted that there is no counter claim No.4. The respondent has
raised three counter claim to the tune of Rs.47,63,825/-, which
have been raised as per agreed terms and conditions of contract and
the respondent is legally entitled to recover the amount of
Rs.47,63,825/-. As per agreed terms and conditions of contract and
due to breach of agreement, the contract was terminated on
24.03.2015 and in case of termination of contract, the respondent is
within its’ right to encash the BG and forfeit earnest money and
security amount.

REJOINDER TO THE REPLY TO ADDITIONAL

SUBMISSIONS:-
 - 3 -

1. That the contents of Para No.1 of the reply to additional

submissions, as stated, are wrong, hence, emphatically denied. It is
submitted that no such document or notifications have been filed
by the respondent to show that Sh. Chander Shekhar, presently
working as Dy. CE/C-II/CSB, Northern Railway has been duly
authorized to represent the Northern Railway and is competent and
duly authorized to represent the Northern Railway and/or to sign
and verify the pleading, including counter claim and to file the
same, as alleged. It is submitted that the nothing has been pleaded
by the respondent that Sh. Chander Shekhar, Dy. CE/C-II/CSB is
competent enough, rather the respondent has mentioned in the
additional submissions that Sh. Anurag Kumar, Dy. CE/C-II/CSB
is competent enough to file the counter claim and represent the
Railway before the Ld. Arbitrator and also relied upon SOP dated
04.06.1992, which has been filed along with counter claim vide
Page No.200-209 of SOD RD-1. It seems that the claimant has not
properly examined the documents filed by the respondent. The
copy of entire set of the documents has been supplied. The SOD
and counter claim have been filed by Sh. Anurag Kumar, Dy.
CE/C-II/CSB, Northern Railway and not by Sh. Chander Shekhar,
the then Dy. CE/C-II/CSB, although he is also equally competent
officer, but he is the In-charge of other Unit.

REJOINDER TO THE REPLY TO BRIEF FACTS:-

1. That the contents of Para No.1 of the reply to brief facts have been
admitted to the extent of details of work, hence do not require any
 - 4 -

rejoinder. Rest of the Para, as stated, are wrong and denied.

However, the averments made in the corresponding Para of the
counter claim may be read as part and parcel of reply to this Para
also, as the same is not being repeated herein for the sake of
brevity. It is specifically denied that reference to clause 7.2 of
tender documents and declaration in the format of clause 2.1 of
Special Tender Condition are misleading, misconceived and
irrelevant and not applicable to any claim or dispute, which is the
subject matter of arbitration at present, as alleged. Rest of the Para
under reply is the matter of record, hence, needs no reply.

2. That the contents of Para No.2 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
the reference and reliance on foot note No.3 to the effect that the
rates of USSOR Chapter-1, Chapter-4, Chapter 4A, Chapter-5,
Chapter-8, Chapter-9, Chapter-11, Chapter-12, Chapter-20,
Chapter-22 and Chapter-23 are banned for future comparison in
isolation, being on higher side and quantity of these chapters
should not be increased without prior approval of accepting
authority, is malafide and motivated and would not apply in this
case, because despite warning of the claimant that due change in
foundation item and design of super structure there would/could
abnormal deviations in quantities and request was made to
 - 5 -

determine and decide the quantity of each of the agreement item

and notify to the claimant as per revised drawings and decisions, as
alleged. It is further denied that despite repeated requests, the
respondent did not do it and as such breached this condition/note,
as alleged.

3. That the contents of Para No.3 of the reply to brief facts, as stated,
are wrong, hence, emphatically denied. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
the formal agreement was delayed on the part of the respondent by
three months, as alleged. It is submitted that the claimant submitted
the PBG on 25.06.2013 after 59 days from LOA and required
penalty was deposited on 28.06.2013. So, this is the reason of delay
in execution of agreement, although even in the absence of the
agreement, the claimant could have started the work, which was
not done. It is denied that execution of work did not suffer and no
prejudice was caused due to alleged delay in deposit of PG and
rather arbitrarily without being ready to get the work executed, the
respondent invited the tender, awarded the work and then
recovered interest also on late deposit without suffering any loss
and without any justification and rather putting the claimant to
double jeopardy. The claimant has relied upon Para No.5 of SOC
as well as letter dated 03.05.2013 annexed as Annexure-C-4 by the
claimant. It is denied that there was no corresponding loss or
 - 6 -

prejudice to the respondent and as such recovery was in violation

of Section 74 of Indian Contract Act and legally unsustainable and
liable to be refunded to the claimant, as alleged. It is denied that the
submission of practical bar chart showing completion of work
within stipulated period of 17.02.2014 was rendered impossible by
the respondent, as the first drawing good for construction itself was
given/issued in the end of March, 2014, i.e. much after expiry of
stipulated period, as alleged. It is further denied that during
extended period, after actual start of execution of work at site, i.e.
foundation work, two times, on each extension bar chart was
submitted by the claimant twice, subject to timely decision and
drawing and approvals by the respondent, as alleged.

4. That the contents of Para No.4 of the reply to brief facts are the
matter of record to the extent that execution of contract agreement
bearing No.35-W/CE/C-II/CSB dated 19.09.2013 was signed by
the claimant and the respondent. However, it is specifically denied
that the claimant signed the agreement on 31.07.2013. The AXEN
concerned has signed the agreement on 31.07.2013, while the
claimant has not put any date at the time of signing the agreement
(Page No.56 of RD-2). However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that it is
misconceived that the terms and conditions of contract agreement
are binding upon both the parties for indefinite period, as alleged. It
 - 7 -

is matter of record that the work was supposed to be completed in

10 months. It is specifically denied that the contract was signed and
tender was submitted keeping in view the stipulated period of 10
months and not for indefinite period, as alleged.

5. That the contents of Para No.5 of the reply to brief facts need no
reply, as the same have not been denied by the claimant. However,
the averments made in the corresponding Para of the counter claim
may be read as part and parcel of reply to this Para also, as the
same is not being repeated herein for the sake of brevity.

6. That the contents of Para No.6 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that actual
execution of work could not be started due to want of decision on
type of foundation and supply of foundation drawing by the
respondent, which were supplied by the end of March, 2014, as
alleged. It is further denied that there was no delay or default on the
part of the claimant at any point of time during currency of
contract, as alleged. It is denied that the respondent granted
extension in DOC due to departmental delays and defaults, till
31.03.2015, as alleged. It is denied that due to non-availability of
confirm decision and approval regarding which steel girder
drawing was to be used and how, for want of approval of QAP and
 - 8 -

WSSP for want of girder launching scheme under traffic block and
due to failure of the respondent to process and approve extra items
resulting from use of new drawings resulting in new items, which
was not given even till March, 2015, for which complete details
were provided by the claimant time and again. It is denied that
instead of granting extension of time of 8 months, the respondent
terminated the contract and awarded work to another agency after
about 4 years on 18.01.2019, which has still not been completed up
to 24.02.2023 in a period of 48 months, as alleged. It is denied that
the work was not awarded to subsequent agency for the similar
item of girder and also not for similar item of civil work or say
similar civil work drawings and on Sitapur 53A ROB drawing or as
per consultant drawing and have applied a completely different
design for superstructure by amending/revising the GAD 3rd time
by issuing Revision 3 (R3) as attached as C-160 to C-163, as per
their convenience, i.e. Bow String Girder for superstructure and
also include the LHS (Under pass under the railway line) by
completely changing all the drawings, which opportunity was
denied to the claimant, as alleged. It is further denied that no such
LHS/Underpass was designed or contemplated under the ROB,
which the claimant was made to execute, as alleged. It is further
denied that the respondent, admittedly, had other reasons to
terminate the contract other than due to the claimant. It is denied
that the termination was apparently malafide and not in terms of
the contract to cover departmental failures as per tender/agreement
items and drawings and failure to take decisions about
 - 9 -

superstructure works, as alleged. It is further denied that request for

extension had to be made because the claimant had made
arrangements of execution and completion of work and had
undertaken the work for execution and as per law reads with other
contract and penal provision, since no time period was made and
maintained as essence of the contract, so the claimant could not
have avoided the work, except to continue and then claim losses
after performance as per second Section 55 of Indian Contract Act,
as alleged. It is denied that all extensions were for the reasons
attributable to the respondent, as alleged. It is denied that extension
could not be of any avail because till termination, amongst others
the respondent could not confirm decision regarding adjustment of
difference of measurement between the different proposed
drawings, as appointed vide letter dated 13.01.2015, 30.01.2015
and 28.02.2015 of the claimant and could not decide as to which
steel girder drawing was to used and how, for want of approval of
QAP and WSSP, for want of approval of launching scheme under
traffic block (though was not part of BOQ despite the claimant
reporting and demanding the same to be made extra item) and due
to failure of the respondent to process and approve extra items
resulting from use of proposed new drawings resulting in new
items etc., as alleged. It is denied that despite full knowledge, the
respondent did not complete the addition of extra items though
mandatory under clause 9.3 through A&C, as alleged. It is denied
that the alleged clause and other clauses barring any claim for
losses due to delays of the respondent, were agreed keeping in view
 - 10 -

and for stipulated period only and not for indefinite period, as
alleged. It is further denied that the claimant has put the respondent
to notice that such clauses would have no application after
stipulated period and the claimant would claim all losses resulting
from prolongation for the prolonged period, as alleged. It is further
denied that the clause barring claim for compensation/losses/
damages to the aggrieved party against the defaulter party is void
under Section 23 of Contract Act, as it defeats the purpose of law,
as contained in substantive law under Section 55 and 73 of Indian
Contract Act and Arbitrator is bound to decide the dispute as per
substantial law applicable to the proceedings and in case of conflict
between the law and contract terms, where law is not subject to
contract agreement between the parties, law will prevail, as alleged.

7. That the contents of Para No.7 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
foundation drawings were made available in the end of March,
2014, approved levels provided in September, 2014, complete
substructure drawings were made available on 30.10.2014 less the
levels and till termination, amongst others, the respondent could
not confirm decisions regarding the adjustment of difference of
measurement between the different approved drawings of super
structure, as pointed out vide letter dated 13.01.2015 (C-60),
 - 11 -

31.01.2015 (C-62), 03.02.2015 (C-63), 17.02.2015 (C-66),

18.02.2015 (C-67), 28.02.2015 (C-68) and 04.03.2015 (C-70) of
the claimant and could not decide as to which steel girder drawing
was to be used and how, for want of approval of QAP and WSSP
through a meeting was sought by the claimant to resolve vide letter
dated 04.03.2015 (C-70), for want of approval of launching scheme
and due to failure of the respondent to process and approve extra
items resulting from the deficiencies in the BOQ itself and use of
proposed/new drawings resulting in new items etc., as alleged.

8. That the contents of Para No.8 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
providing the drawings was in the scope of respondent and
claimant never provided drawings for foundation or and
substructure over sheet No.2 to 9 as at C-175 to C-182, as alleged.
It is denied that in response to the letter dated 06.07.2013 of the
respondent, the claimant attended the office of the respondent, but
the actual agreement was not provided, as the same was not ready,
but was subsequently signed the proposed agreement on
31.07.2013, when the agreement was finally prepared by the
respondent and presented to the claimant, yet the respondent signed
on 19.09.2013 and supplied copy thereof on 28.09.2013, as alleged.
 - 12 -

9. That the contents of Para No.9 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
asking the claimant to bring steel plates for fabrication of girders
on 22.08.2013, which item was almost last item to be executed,
without decision on and supply of the foundation and substructure
and its’ drawings was malafide and motivated, as alleged. It is
further denied that original standard RDSO drawing for
superstructure, as mentioned in GAD, could be used only after
certification/confirmation by the RDSO that it was fit/suitable for
the site in question, which was never got done by the respondent,
despite repeated requests, as alleged. It is denied that the contents
of the letters dated 22.08.2013 and 18.09.2013 was malafide and
motivated just to cover departmental delays in deciding and
approving the drawing of foundation and substructure, which were
delayed immediately, as alleged.

10. That the contents of Para No.10 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
no steel could have been ordered till decision was conveyed and
the decision was to be in conformity to the contract conditions, as
 - 13 -

at original GAD, as alleged. It is denied that there was any

malafide, hide and seek tactics on the part of the respondent, which
is evident from the fact that in letter dated 04.10.2013 the
respondent is silent about proposal to use revised RDSO drawing,
yet when the claimant, vide letter dated 09.10.2013 pointed this
out, then only in letter dated 14.10.2013 the respondent admitted
that on 28.09.2013, the claimant was given that the respondent will
decide proposal to use revised RDSO drawing or original standard
RDSO drawing, which came into being in April, 2013, i.e. much
after submission of tender and respondent executive engineer not
even had the approval of GAD till 14.10.2013 was a proposal to
use revised/new RDSO drawing, so that the claimant in response
thereto, vide letter dated 15.10.2013 (C-16) stated that since the
size and thickness and type of steel and other items in both the
drawings differ, which needed approval of many extra items, apart
from non-availability of such steel easily, so in the interest of work
the claimant proposed to use consultant design, which was as per
the contract condition when the RDSO Drawing does not confirm
the suitability of standard RDSO drawing RDSO/B-11758 an the
consultant design were/are allowed and being allowed in other
many works of the respondent, as alleged.

11. That the contents of Para No.11 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
 - 14 -

as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity.

12. That the contents of Para No.12 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity.

13. That the contents of Para No.13 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
change of proposed name and entity has no relevance so far as
execution of the work is concerned, more so when request was
declined, as alleged.

14. That the contents of Para No.14 of the reply to brief facts have not
been denied, hence, needs no reply. However, the averments made
in the corresponding Para of the counter claim may be read as part
and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity.

15. That the contents of Para No.15 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
 - 15 -

as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
foundation and part of substructure drawing was supplied in last
week of March, 2014, when the claimant came to know about the
details of reinforcement to be used in foundation, as alleged. It is
further denied that finding that some of the Dias of steel
reinforcement for RCC work were not readily available in the
market, so the claimant, in the interest of early execution of work
requested for substitution of the Dia of steel. It is denied that
approval of design mix was given in the beginning of second week
of May, 2014, as alleged. It is denied that the girder cannot be
completed, if even small portion of steel component remains
unavailable. It is further denied that steel is procured when the
availability is checked thoroughly, as alleged. It is denied that
DOC was applied till 31.12.2014 with condition for the respondent
to fulfil their obligations in required time frames, as in the attached
bar charts, as alleged.

16. That the contents of Para No.16 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
only the work of foundation of CP-2 was possible, but concreting
thereof was delayed for want of decision of approved level and
further work of piers over the open foundation was getting delayed
 - 16 -

for want of drawing in the SOD as made with reference thereof, as

alleged. It is denied that before the claimant could start
procurement of steel as per said drawing, as per availability, the
respondent were required to order in writing or execution f and
decide rate of new extra/NS item, as detailed therein, arising out of
use of the said drawing, as alleged. It is further denied that there
had been abnormal plus/minus variations in quantity and complete
drawing of substructure had not been supplied till then, as alleged.
It is further denied that extra item were coercing got paid in the 1st
R/A Bill, viz. admixture was not added through A&C, as was
necessary under contract clause 9.3 etc. and there was cutting and
overwriting even on the dates of measurement, written as actual,
i.e. 05.06.2014 than the bill was not processed to harass and cause
coercion and financial duress to contractor and later was endorsed
as 03.07.2014, i.e. after 1 month the bill was processed by hiding
their illegal act of such a long delay, as alleged.

17. That the contents of Para No.17 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
complete decisions drawings and instructions had not been issued
till then, as alleged. It is further denied that the instance on
procurement of steel for girder and fabrication of girder without
 - 17 -

approval of rates for even agreed extra item was contrary to tender
condition 9.3, as such not permissible, as alleged.

18. That the contents of Para No.18 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
the respondent knew that it was at fault, so the respondent neither
agreed for interim arbitration nor resolved the issues, as alleged.

19. That the contents of Para No.19 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
pier cap drawings were supplied only on 30.10.2014 at site, as
alleged. It is further denied that ultimately, the respondent agreed
and admitted that the RDSO revised design of girder involved
processing and approval of many extra items and many thicknesses
of requisite steel plates were also not easily available, which the
claimant had been pointed out since October, 2013, as alleged. It is
denied that the work of pier still could not be casted/completed in
absence of clarification of the Level of Pier Cap by the respondent
and also that the civil and other work needed to start in parallel, as
alleged. It is denied that steel for the pier had been procured and
 - 18 -

cut and fixed and bonded and 1.75 MM Dia shuttering had already
been got fabricated and placed at site by the claimant, as alleged. It
is denied that order for steel as per drawing of Sitapur ROB 53 was
placed and QAP and WSSP under preparation and ultimately
submitted for approval. It is further denied that the work was
already in hand and claimant was regularly chasing the respondent
for approval of new items and clarifications to progress the work,
as alleged. It is further denied that structural steel could only be
finally procured only the drawing is finally approved of steel
girders, as alleged.

20. That the contents of Para No.20 of the reply to brief facts, as stated,
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that the show
cause notice was not in terms of clause 62and as such, no notice at
all, as alleged.

21. That the contents of Para No.21 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that without
approval, the steel plates could not be procured, as alleged. It is
 - 19 -

further denied that till March, 2015, no response to the letter was
given despite reminder dated 16.02.2015, as alleged.

22. That the contents of Para No.22 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

23. That the contents of Para No.23 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that the
show cause notice dated 10.03.2015 was nothing, but an act of the
respondent, misusing and abusing its’ official dominating position
to cover its’ failures and breaches of contract, as alleged. It is
denied that the show cause notices were inconsequential, as firstly
the reply to the show cause notice and withdrawal of the same was
needed, as alleged. It is denied that the show cause notice dated
10.03.2015 was not in terms of clause 62 and was malafide, as
alleged.

24. That the contents of Para No.24 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
 - 20 -

repeated herein for the sake of brevity. It is specifically denied that

the claimant had made arrangement for execution and completion
and subject to payment of losses for prolonged period to be paid by
the respondent, it had all along and always been ready and willing
to execute and complete the work, as alleged.

25. That the contents of Para No.25 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that 48 Hrs.
Notice dated 19.03.2015 was malafide and motivated and not in
terms of clause 62, as alleged. It is denied that 48 Hrs. Notice was
received on 23.03.2015, as alleged.

26. That the contents of Para No.26 of the reply to brief facts, as stated,
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that before
receiving the termination letter dated 24.03.2015, the claimant had
moved court for interim order. It is denied that termination dated
24.03.2015 was arbitrary, unjustified, malafide, contrary to clause
and law applicable and no consequences and validity, as alleged. It
is further denied that the respondent was not ready with decisions,
drawings/designs of superstructure, as alleged. It is denied that the
 - 21 -

work was not awarded to subsequent agency for similar item of

girder and on Sitapur 53-A ROB drawing, but as per totally
different design of superstructure/foundation and substructure by
adding bow string as super structure and LHS (Under pass) through
3rd revision as C-16 drawing, which opportunity was denied to the
claimant. It is denied that there is no demand of any nature nor any
loss or damages suffered and claimed, so forfeiture or encashment
of the security deposit and PG was/in unlawful, unjustified and
contractual and is not sustainable, more so, when the impugned
termination is itself not sustainable, either in facts of the case or as
per applicable contract or as per applicable law, as alleged.

27. That the contents of Para No.27 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity.

28. That the contents of Para No.28 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
encashment in violation of court order and against law, it is for this
reason that it was got restored, as alleged.
 - 22 -

29. That the contents of Para No.29 of the reply to brief facts, as stated,
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that the
measurements, as given on a paper, were got signed much later and
returned with objections by the respondent, as stated, under
relevant claim by the claimant. It is denied that clause 45-A is not
applicable in the facts of the present case, as alleged.

30. That the contents of Para No.30 of the reply to brief facts, as stated,
are wrong, hence, denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that clause
4.8 got attracted only if and when total value of USSOR: 2010
items of contract exceeded 25%, as alleged. It is denied that the
final A&C is not as per the actual work done, as alleged. It is
denied that clause 43.1 of GCC stands superseded by clause 43.1
would cover items of work done only not the claims for losses
because the same are legal claims, as alleged.

31. That the contents of Para No.31 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
 - 23 -

repeated herein for the sake of brevity. It is specifically denied that

the running bills paid during execution were not for complete items
and measurement and all items executed were subject to clause 46,
50.2 and 64 of GCC, as alleged.

32. That the contents of Para No.32 of the reply to brief facts
pertaining to invocation of arbitration clause, are the matter of
record, hence, needs no reply. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

33. That the contents of Para No.33 of the reply to brief facts are
wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that initially,
the respondent avoided appointment and later on appointed
incomplete and incompetent Tribunal by not referring all claims of
the claimant to arbitration.

34. That the contents of Para No.34 of the reply to brief facts, as stated,
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity. It is specifically denied that all the
 - 24 -

claims were not referred, as alleged. It is further denied that the

claimant was forced to approach to the Court, as alleged.

35. That the contents of Para No.35 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
value of the claim as alleged are wrong, misconceived and
irrelevant.

36. That the contents of Para No.36 of the reply to brief facts are the
matter of record, hence, needs no reply. However, the averments
made in the corresponding Para of the counter claim may be read
as part and parcel of reply to this Para also, as the same is not being
repeated herein for the sake of brevity. It is specifically denied that
respondent did not cooperate by not complying the order dated
20.04.2018 passed by the AT.

37. That the contents of Para No.37 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

38. That the contents of Para No.38 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
 - 25 -

corresponding Para of the counter claim may be read as part and

parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

39. That the contents of Para No.39 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

40. That the contents of Para No.40 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

41. That the contents of Para No.41 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

42. That the contents of Para No.42 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.
 - 26 -

43. That the contents of Para No.43 of the reply to brief as stated are
wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.

44. That the contents of Para No.44 of the reply to brief facts as stated
are wrong and denied. However, the averments made in the
corresponding Para of the counter claim may be read as part and
parcel of reply to this Para also, as the same is not being repeated
herein for the sake of brevity.
REJOINDER TO THE REPLY OF COUNTER CLAIM

COUNTER CLAIM No.1

The contents of reply to the counter claim No.1, as stated, are
wrong, hence, emphatically denied. It is submitted that all the allegations
made by the claimant in the Para under reply are wrong, false, frivolous,
vexatious, misconceived and hence, denied. However, the averments
made in the corresponding Para of the counter claim may kindly be read
as part and parcel of reply to this Para also, as the same are not being
repeated herein for the sake of brevity. The respondent is entitled to
recover the claimed amount from the claimant.

COUNTER CLAIM No.2

The contents of reply to the counter claim No.2, as stated, are
wrong, hence, emphatically denied. It is submitted that all the allegations
 - 27 -

made by the claimant in the Para under reply are wrong, false, frivolous,
vexatious, misconceived and hence, denied. However, the averments
made in the corresponding Para of the counter claim may kindly be read
as part and parcel of reply to this Para also, as the same are not being
repeated herein for the sake of brevity. The respondent is entitled to
recover the claimed amount from the claimant.

COUNTER CLAIM No.3

The contents of reply to the counter claim No.3, as stated, are
wrong, hence, emphatically denied. It is submitted that all the allegations
made by the claimant in the Para under reply are wrong, false, frivolous,
vexatious, misconceived and hence, denied. However, the averments
made in the corresponding Para of the counter claim may kindly be read
as part and parcel of reply to this Para also, as the same are not being
repeated herein for the sake of brevity. The respondent is entitled to
recover the claimed amount from the claimant.

45. That the contents of Para No.45 of the reply to brief facts as stated are
wrong and denied. However, the averments made in the corresponding
Para of the counter claim may be read as part and parcel of reply to this
Para also, as the same is not being repeated herein for the sake of brevity.

Prayer clauses of the reply to the counter claim, as stated, are

wrong, hence, emphatically denied.
 - 28 -

PRAYER:-
It is, therefore, most respectfully and humbly prayed that in view of
the above facts and circumstances of the case, the Ld. Sole Arbitrator may
graciously be pleased to dismiss/reject the reply to the counter claim filed
by the claimant and allow the counter claims of the respondent in favour
of the respondent and against the claimant, along with interest and cost,
as prayed for, in the interest of justice.

It is prayed accordingly.

RESPONDENT/UOI
THROUGH: ANURAG KUMAR
DY. CE/C-II/CSB,
NORTHERN RAILWAY,
SHIVAJI BRIDGE,
NEW DELHI
THROUGH:
DELHI.
DATED: __.12.2023
[VINOD KUMAR RAI]
ADVOCATE
ENROL. No.D-279/1988
CH. No.413, WESTERN WING,
TIS HAZARI COURTS, DELHI-110054
MOB: 9811603482
E-MAIL: [email protected]
 - 29 -

BEFORE SH. KAMLESH KUMAR, DISTRICT JUDGE (RETD.),

LD. SOLE ARBITRATOR, DELHI INTERNATIONAL
ARBITRATION CENTRE (DAC), DELHI HIGH COURT, SHER
SHAH ROAD, NEW DELHI-110001, MOB: 9971208844

CASE REFERENCE No.DIAC/5056/09-22

IN THE MATTER OF:-
M/s. CSE INFRA … CLAIMANT
VERSUS
UNION OF INDIA … RESPONDENT

AFFIDAVIT

I, ANURAG KUMAR, presently working as Dy. CE/C-II/SSB, with

Northern Railway, Shivaji Bridge, New Delhi, do hereby solemnly affirm
and declare as under:-

1. That I am working as Dy. CE/C-II/SSB, Northern Railway, Shivaji

Bridge, New Delhi, hence I am well conversant with the facts and
circumstances of the present case as per the information derived
from the official record and I am fully competent to swear the
present affidavit.

2. That the contents of the accompanying rejoinder to the counter

claim have been drafted by my counsel under my instructions and
the facts stated therein are true and correct to my knowledge based
on the information derived from the official records, which are not
being reproduced herein for the sake of brevity and the same may
kindly be read as part and parcel of this affidavit.
 - 30 -

3. That my above statement is correct.

DEPONENT
VERIFICATION:-
Verified at Delhi on this __ day of December, 2023 that the contents of
my above affidavit are true and correct to the best of my knowledge and
belief, no part of it is false and nothing has been concealed therefrom.

DEPONENT