*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.APPL.84 /2009
% Date of decision: 24th September, 2009
NARESH GUPTA ....Petitioner
Through: Mr. Raman Kapur, Advocate
Versus
MUNICIPAL CORPORATION OF DELHI ... Respondent
Through: Mr Himanshu Upadhyaya with Mr Nitin
Kumar, Advocates.
AND
ARB.APPL.99/2009
SHRI ROHTAS ....Petitioner
Through: Mr. Raman Kapur, Advocate
Versus
MUNICIPAL CORPORATION OF DELHI ... Respondent
Through: Mr Himanshu Upadhyaya with Mr Nitin
Kumar, Advocates.
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. Notices of these petitions under Section 11 of the Arbitration Act, 1996 were issued to the respondent/MCD on 3rd March 2009 and 13th March 2009 respectively. In spite of several dates, no reply has been filed till date. In fact, on the last date i.e. 18th September 2009, none appeared for the MCD and though the counsel for the petitioner in both the petitions was heard, in the interest of justice, Arb.A. 96/2009 & 100/2009 Page 1 of 4 orders were deferred. The counsel for the respondent has today informed that he has not received the documents from the MCD as yet and as such the replies could not be filed. Considering the nature of the petitions, it is not deemed appropriate to defer the matters further.
2. On a reading of the averments in the petitions, the claims, for adjudication whereof arbitration is sought, appear to be time barred and long dead ones. However, counsel for the petitioners has contended that as per the agreement between the parties, the petitioner was to make a demand for arbitration within 90 days of "receiving the intimation from the Corporation or any officer authorized in this behalf that the Bill is ready for payment." It is contended that no intimation was given to the petitioner of the Bill being ready for payment and as such the petitions are not barred by time. Reliance in this regard is placed on Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, (1988) 2 SCC 338 and on EN Veeka Construction Co. Vs. DDA 1999 (1) Arb. LR 298 (Delhi) as well as on Avinash Sharma Vs. Municipal Corporation of Delhi 2007 (4) Arb. LR 147 (Delhi). Attention is also invited to Section 25 (3) of the Contract Act. It is contended that the promise by the respondent to make payment to the petitioner is found in the Noting dated 6th September 2007 of the Executive Engineer (DEMS) Narela Zone of the respondent to the Director CSE of the MCD, Narela Zone. Though the said noting is not addressed to the petitioners, it is contended that the same was in response to the representation made by the petitioners, as recorded in the said noting also.
Arb.A. 96/2009 & 100/2009 Page 2 of 4
3. Counsel for the respondent has contended that the petitioners cannot sleep over their rights and that from the letter of September 2008 of the Advocate for the petitioner in both cases to the Commissioner MCD and from letter dated 21.07.2006 of petitioner in AA 84/2009 to the Director/CSE/MCD Narela Zone, it is evident that the final bill had been prepared and the petitioner was aware of the same. He has also contended that the noting dated 6th September 2007 cannot be construed as a promise by the respondent to the petitioner. He has contended that the claims are time barred.
4. In view of the aforesaid controversy, it appears that the question as to whether the claims are within time or not requires investigation. The Supreme Court has in National Insurance Co. Ltd. Vs. Boghara Polyfab Pvt. Ltd. AIR 2009 SC 170 held that the issue of whether the claim is a dead/long barred claim or a live claim is one which the Chief Justice/his designate may choose to decide or leave to the decision of the arbitral tribunal. In the facts and circumstances aforesaid of these two cases, the issue cannot be decided without further investigation and is as such left for decision of arbitral tribunal. The respondent shall be at liberty to set up defence of the claims of the petitioner being barred by time before the Arbitral Tribunal.
5. The agreement of the parties was for arbitration by the nominee of the Commissioner, MCD. However the Commissioner MCD has forfeited the right to appoint the arbitrator. The Petitioners have become entitled to appointment of an arbitrator by the Chief Justice/his designate. Mr. S.M. Chopra, Retd. Additional District Judge is appointed as the Arbitrator to adjudicate the disputes subject matter of both petitions. Since the claims in both the Arb.A. 96/2009 & 100/2009 Page 3 of 4 petitions are small, the consolidated fee of the Arbitrator in both the petitions is fixed at Rs. 30,000/- besides out of pocket expenses and to be borne initially by the petitioner, subject to award as to costs. The parties to appear before Arbitrator with prior appointment on 23rd October 2009.
Order be given Dasti as prayed for.
RAJIV SAHAI ENDLAW (JUDGE) September 24th, 2009 neelam Arb.A. 96/2009 & 100/2009 Page 4 of 4