Prem Chand Sharma & Co. vs Delhi Development Authority
1999 Latest Caselaw 1149 Del

ORDER

Manmohan Sarin, J.

1. This is a petition filed by the petitioner under Section 20 of the Arbitration Act seeking reference of disputes mentioned in Annexure D to the petition.

The petitioner filed the above petition on 18.1.1995, giving complete particulars of the work of construction as :- 656/672 MIG Houses at Paschimpuri Pocket GH-9, Zone G-17, i/c Water supply, sanitary installations and Group-II (Balance work) at estimated cost of Rs. 34,72,788. Not only this, the petitioner also mentioned that the division has been re-named as Executive Engineer, Western Division-12, DDA, Lekkar Mandi, Kirti Nagar, New Delhi.

2. Notice in the petition was issued on 23.1.1995. The respondent DDA was duly served and it filed a reply. The respondent DDA took preliminary objection on the maintainability of the petition stating that no agreement bearing Agreement No. 101/EE/WD-12/DDA/87-88, had been entered into by the Authority with the claimant/petitioner in the year 1987-88. Curiously, in the very next sentence of the reply after the above averment, it is mentioned that the agreements entered into were agreement Nos. 10/EE/WD12/DDA/87-88, 11/EE/WD-12/DDA/87-88 and 12/EE/WD-12/DDA/87-88. It was contended that the petition in respect of the said agreement was not maintainable. In para 7, of the reply, it was averred:

"That in reply to contents of para 7, it is submitted that no agreement was entered into between the parties and the provisions of clause 25 of the agreement will not apply. It is further submitted that the said agreement is a forged document and a police complaint has been lodged for investigation of the same. However, it is submitted that the petitioner had written a letter to the Engineer Member for the appointment of the Arbitrator. It is submitted that the said request of the petitioner could not be acceded to as there was no such agreement entered into between the WD-12 and the petitioner."

3. The reply then went on to justify the declining of the request for reference of disputes to arbitration made by the petitioner. The petition-

er, filed rejoinder stating that the DDA was needlessly concerned about the agreement number. The petitioner contended that in fact in the folder, containing the agreement, given to him by the DDA, the number mentioned was 101 and he reproduced the same in the petition. The petitioner in the circumstances moved an application No. 9915/96 under Order VI Rule 17 CPC, seeking to correct the agreement number as "10" instead of "101". The amendment was allowed by the Court on 28.7.1977.

4. Thereafter on several dates adjournments were sought and reply to the amended petition was not filed by respondent DDA. This went on till 1999. Relief eluded the petitioner for 4 years, for no fault of this. When the matter came up before this Bench on 19.11.1999, the Court directed the Law Officer of the DDA, who was present in Court, to look into the matter and take appropriate steps as the conduct of the DDA in the case was wholly unsatisfactory. On 24.1.1999, directions were given for making the entire original record available to the case. Today, Ms. Ansuya Salwan appears in Court along with Mr. S.R. Solanki, present Executive Engineer, WD-7 of the DDA.

Mr. Salwan very fairly concedes that this was a case of simple error in the agreement number and the correct agreement number is agreement No. 10. she further submits that she has compared agreement No. 101, furnished by the petitioner along with the agreement No. 10 and both are identical.

5. The proceedings in this case demonstrate the lamentable manner in which respondent DDA has conducted the defense of the case. The petitioner, who came to the Court in 1995, seeking a reference of its disputes to arbitration, giving complete particulars of the work concerned executed by him, has been denied relief on the basis of a mechanical and mindless stand taken by the respondent DDA for a period of 4 years. The exercise that has been done today by comparing the agreements by Ms. Ansuya Salwan, advocate could have been done at the very initial stage by the DDA, rather than taking a position that the document was a forged document and no reference of disputes could be made. The executive engineer, who is present in Court, submits that no police complaint was lodged contrary to what had been averred in the reply, duly signed and verified by the concerned official of the DDA. This matter requires to be looked into.

6. Let the respondent's Chief Engineer conduct an enquiry and affix responsibility for lapses in this case and take corrective action to prevent recurrence of such lapses. Let compliance be reported to the Court within three months.

Learned Counsel for the respondent submits that the respondent DDA has now no objection to the appointment of an arbitrator. In the result, the petition is allowed. Let the original agreement be filed on record. Respondent DDA will ensure that the appointing authority appoints and nominates an arbitrator within four weeks. The disputes mentioned in annexure D to the petition and counter claims, if any, of the respondent are directed to be referred to the arbitrator, to be appointed by the respondent DDA.

The petition stands allowed.

A copy of this order be given dasti to counsel for the respondent.