Delhi High Court
Khem Chand vs Union Of India on 1 August, 1997
Author: K Gupta
Bench: K Gupta
JUDGMENT
K.S. Gupta, J.
1. In this petition under Section 20 of the Arbitration Act, 1940, case of the petitioner is that he entered into a contract with the respondent for execution of work of "Extension of Ranhela Bridge at RD 30825 Supplementary Drain/Bridge" of the contract value of Rs. 15,02,221/- and an agreement bearing No. EE/SDDV/2/1990-91 was executed. It is alleged that in respect of the following claims disputes have arisen between the parties :
Claim No. 1 : Rs. 1.25 lakhs on account of balance payment due towards due towards work executed but not paid.
Claim No. 2 : Rs. 3.55 lakhs on account due under Clause 10-CC of the contract towards rise in wages of labour and price of material as well as POL, etc.
Claim No. 3 : Refund of Security Deposit of Rs. 1 lakh.
Claim No. 4 : Damages to the tune of Rs. 2 lakhs.
Claim No. 5 : Interest @ 18% per annum on the amount due from the defendant till the date of recovery of payment thereof whichever is earlier.
Claim No. 6 : Rs. 20,000/- being cost of these proceedings.
Claim No. 7 : Rs. 75,000/- on account of excavation of Toe wall and allied operations.
2. It is further stated that the Petitioner while invoking the provision of the aforesaid agreement by the letter dated October 31, 1994 requested respondent No. 2 to appoint an Arbitrator to adjudicate upon the said claims but no Arbitrator has yet been appointed by him. It was prayed that respondents be directed to file the original arbitration agreement in Court and thereafter respondent No. 2 to make appointment of an Arbitrator in terms of the Arbitrator agreement for adjudications of the claims as noted in para 6 of the petition.
3. Respondents have contested the petition by filing a joint written statement. It is not denied that the petitioner was awarded the work of "Extension of Ranhela Bridge at RD 30825 Supplementary Drain/Bridge" and an agreement containing arbitration clause was entered into between the parties, as alleged. It is further not denied that the work was to commence from August 27, 1990 and it was to be completed by June 26, 1991. However, liability to pay the amount as claimed by the petitioner under different heads in para 6 of the petition is emphatically denied. It is stated that only a sum of Rs. 9,343/- remains to be paid towards the work executed by the petitioner. Petitioner never made any claim towards rise in wages of labour and price and material, etc., during the execution of the contract and even upto December, 1993.
4. It is alleged that the petitioner was issued notice Clause 14 of the agreement to rectify/demolish the defective portion of the bridge and to reconstruct the same at his own cost vide office No. F. 1 (32) 90. Acs./SDD-V/Part-File/5241 dated January 18, 1995 but he neither dismantled nor constructed the defective portion of the superstructure of the bridge. That work is now to be executed at his cost and risk. It is emphatically denied that the work of excavation of Toe Well and allied operations was carried out at the site by the petitioner as alleged.
5. Since the award of work of "Extension of Ranhela Bridge at RD 30825 Supplementary Drain/Bridge" to the petitioner, execution of the agreement bearing No. EE/SDD-V/2/1990-91 containing arbitration clause and existence of disputes between the parties falling within the ambit of the aforesaid agreement are admitted, the petitioner is entitled to have the original agreement No. EE/SDD-V/2/1990-91 filed by the respondent in Court and to seek appointment of an Arbitrator by respondent No. 2 for adjudication of the claims made by him.
6. Petition is, therefore, allowed. Respondents shall file the agreement No. EE/SDD/V/2/1990-91 in Court within two weeks. Respondent No. 2 is directed to appoint an Arbitrator within a month from today and the Arbitrator so appointed will adjudicate upon the claims of the petitioner. It would be open to the respondents to submit their claims or counter claims before the Arbitrator. Arbitrator will fix his own fee and enter upon the reference and make and publish the award within the period prescribed under the Act. No order as to costs is made.
7. Petition allowed.
