Ashok Kumar Chhabra vs Urban Improvement Co. Pvt. Ltd.
1995 Latest Caselaw 624 Del

JUDGMENT

Devinder Gupta, J.

(1) On 6th October, 1989 Shri M.L.Anand, Chief Engineer (Retired) New Delhi Municipal Committee, New Delhi, made and published his award, which was filed in this Court and is registered as Suit No. 2740/91. Notice of the filing of the award was directed to be issued to the parties. Claimant did not chose to file any objection to the award. Objections, however, have been filed by the respondent, which are registered as I.A.3929/92. Despite number of opportunities allowed to the claimant, reply to the objections was not filed. Final opportunity to file reply was allowed on 18th May, 1993 but no appearance has been put in on behalf of the petitioner/claimant. Accordingly, I have heard learned Counsel for the respondent/Objector who has taken me through the entire record in support of the objections. Suit No. 2966/89 is an application by claimant seeking direction to file award and to make the same a rule of Court. This suit was also directed to be taken up with the objections filed by the respondent.

(2) The main objection to the award is that the Arbitrator has misconducted himself and the proceedings due to which the award is vitiated .It is also stated that the Objector was served with the notice of the filing of the award for 9th January, 1992. Objections filed on 5th February, 1992 are thus within the period of limitation.

(3) The claimant was engaged by the respondent for carrying out the work of construction of roads including earth work in roads and areas at Greenfield Colony, Faridabad (Haryana), As per the terms of agreement, disputes, if any, were liable to be referred for adjudication by an Arbitrator. On the claimant's application moved under Section 20 of the Arbitration Act (for short "the Act" ) in Suit No.233-A/8, on 30th January, 1987, Shri M.L. Anand was appointed as the Sole Arbitrator. After the claimant had filed claim and before the respondent Could file his counter claim, the claimant moved an application (IA.3003/87) seeking amendment in the reference, which was allowed and the Arbitrator again entered upon reference on 16th February, 1988.

(4) The Objector has made grievance as regards the proceedings recorded by the arbitrator from 1st September, 1989 onwards. It is alleged that during arbitration proceedings some miscreants assaulted Mr.V.R.Vaish, a retired Director General of Central Public Works Department, who was also the Technical Advisor of the respondent and Lt. Col. M.K.. Khosla (Retired) Resident Engineer of the respondent, which fact was brought to the notice of the Arbitrator and the Arbitrator in his proceedings had noticed this fact on which ground the respondent had requested the Arbitrator to fix another date for further proceedings some where in the last week of September, 1989. It is alleged-that on 1st September, 1989, there had been some telephonic conversation between the respondent and the Arbitrator during which the respondent informed the Arbitrator that rejoinder dated 31st August, 1989 had been sent by registered post and had requested the Arbitrator to fix the date of hearing in the last week of September, 1989. The letter together with rejoinder was delivered to the Arbitrator by I p.m. on 4th September, 1989. In the meanwhile, on Saturday, the 2nd September, 1989, in the afternoon, after the close of office hours, a letter purporting to be dated 1st September, 1989 was delivered in the office of the respondent in which certain remarks had been made by the Arbitrator against the respondent that respondent had taken no action on the Arbitrator's letter dated 11th August, 1989 and in the said letter it was also pointed out that Arbitrator had fixed date of hearing as 4th and 5th September, 1989. On 4th September, 1989, the respondent submitted reply to the letter of the Arbitrator by personally appearing before the Arbitrator and it was also pointed out to the Arbitrator that rejoinder had been dispatched by registered post and request was made to fix dates of hearing. The Arbitrator had pointed out to the Objector that since last date for making of the award was 7th September, 1989, therefore, the respondent must seek extension of the period in making the award and gave consent to the Arbitrator praying for extension of time in making the award. It is also the respondent's grievance that proceedings were held by the Arbitrator ex parte on 4th, 5th and 6th September, 1989, for which elaborate submissions have been made in paras 15 to 17 of the objection petition. The Objector has also made grievance as regards the further proceedings and pointed out that the Arbitrator proceeded with utmost haste without affording due opportunity to the respondent and also avoided to give reasons for the award. The respondent's grievance is that during the pendency of the Arbitrator proceedings and before the case had been heard by the Arbitrator on merits, respondent had also filed an application on 19th November, 1988 before the Arbitrator with a specific request to make and publish a speaking and reasoned award. This application was not opposed by the claimant, therefore, the Arbitrator was bound to make speaking an reasoned award, which had not been done. On merits also the respondent has questioned the award.

(5) Since the claimant has not chosen to file reply, learned Counsel for the respondent contended that places reliance upon the record and the proceedings of the Arbitrator, which support his objection. I have been taken through the proceedings of the Arbitrator from which I find that respondent's grievances are genuine and are based upon the material placed on record.

(6) 4TH September, 1989 was the date of hearing before the Arbitrator on which date the respondent gave its consent that the time for making of award be extended for a period of four months, namely, up to 7th January, 1990. Perusal of this letter shows that there is an endorsement made by the claimant to the effect that he agreed for extention of time for two months i.e. up to 7th November,1989. There is also on record a letter of the respondent dated 4th September, 1989 delivered in person to the Arbitrator on which an endorsement has been made by the Arbitratror in hand that it was received by him at 4.30 p.m.

(7) In the light of the respondent's application dated 4th September, 1989 and what is contained in letter dated 4th September, 1989 and 12th September, 1989, which also contains Arbitrator's notes on the margin, it can safely be inferred that the Arbitrator discussed the merits of the case with the claimant in respondent's absence and did not afford to the respondent a reasonable opportunity of being heard. The Arbitrator proceeded with utmost haste in making and publishing his award. In view of the request of respondent's Counsel, which was based on some peculiar facts, which were not disputed by the claimant, the Arbitrator ought to have granted opportunity to put forth its case. In view of the request of the respondent which was also not opposed by the petitioner, the Arbitrator ought to have given a reasoned award which has not given. For these reasons, I am inclined to allow the objections, which are hereby allowed and set aside the award. Suit Nos. 2966/89, S.Nos. 2740/91 and I.A.3929/92 stands disposed of.