*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ AAs No.441 & 444/2008
% Date of decision: 11.09.2009
M/S TECHNO CONSTRUCTION COMPANY ....Petitioner
Through: Mr. B.L. Wali, Advocate.
Versus
MUNICIPAL CORPORATION OF DELHI ... Respondent
Through: Ms. P. Mukherjee proxy counsel for
Ms. Shyel Trehan, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. Petitions under Section 11 (6) of the Arbitration Act, 1996 are preferred with respect to the licenses granted by the respondent MCD to the petitioner with respect to parking sites at Parade Ground and Ajmeri Gate to Lahori Gate. The licenses granted to the petitioner provide for arbitration of an arbitrator to be appointed by the Commissioner, MCD. The petitioner is stated to have approached the Commissioner, MCD for appointing the arbitrator and upon the Commissioner, MCD not appointing the arbitrator these petitions were preferred and notice thereof issued to the respondent MCD.
2. The order dated 1st September, 2009 in Arbitration Petition No.441/2008 shows that the MCD had appointed a Remission Committee to take a decision with respect to claims, inter-alia of the petitioner for reduction of license fee with respect to the aforesaid AAs No.441 & 444/2008 Page 1 of 3 parking sites on various grounds. The proceedings were thus adjourned awaiting the report of the said Remission Committee, by the decision whereof the respondent MCD was to be guided.
3. The counsel for the respondent MCD has today informed that the Remission Committee has in its report given some remission in the license fee with respect to the parking site, subject matter of Arbitration Application No.441/2008. There is some ambiguity whether the claims of the petitioner for remission of license fee with respect to parking site subject matter of Arbitration Application No.444/2008 also were considered by the Remission Committee or not. The counsel for petitioner states, they were not.
4. The counsel for the respondent MCD has also contended that the petitioner has in spite of expiry of the term of its licenses neither vacated the parking sites nor has paid the license fee thereof. The same is controverted by the counsel for the petitioner who has stated that the petitioner is entitled to renewal of license year after year for a period of five years and has already applied for renewal but which is not being granted by the respondent MCD for the reason of the petitioner having not paid the license fee, disputes with respect whereto have been raised.
5. The aforesaid would show that, existence of an arbitration agreement between the parties and or disputes inter se covered therewith having arisen and of this court being the appropriate court to entertain these applications is not in dispute.
6. Though, the counsel for the petitioner has contended that the petitioner has become entitled to appointment of an independent AAs No.441 & 444/2008 Page 2 of 3 arbitrator owing to the failure of the appointing authority to appoint the arbitrator even till date, but in my view since Remission Committee has been constituted and till the decision thereof it was not felt feasible to appoint the arbitrator, and further in consonance with the law laid down in ACE Pipeline Contracts Ltd. Vs. Bharat Petroleum Corp. Ltd. (2007) 5 SCC 304, Northern Railway Administration Vs. Patel Engineering Co. Ltd. (2008) 10 SCC 240, it is deemed appropriate to give another opportunity to the appointing authority to appoint the arbitrator in accordance with the agreement rather than appoint an independent arbitrator. It has been held in the said judgments that the court in exercise of powers U/s.11(6) of the Act can give a mandate to the appointing authority to appoint the arbitrator as per the agreement or appoint the arbitrator in terms of the agreed mechanism.
7. Accordingly, the Commissioner, MCD is directed to within four weeks of today appoint the arbitrator to go into the claims and counter claims, subject matter of the arbitration clause in the two agreements aforesaid. In the event or the arbitrator not being so appointed, the petitioner shall be at liberty to apply for appointment of an independent arbitrator. This order shall not come in the way of the respondent MCD, if entitled in law to proceed in any manner whatsoever against the petitioner from doing so.
The petitions are disposed of.
Copy of this order be given dasti under the signature of Court Master to counsel for parties.
RAJIV SAHAI ENDLAW (JUDGE) September 11th, 2009 pp AAs No.441 & 444/2008 Page 3 of 3