Shri Ram Karan Goel vs Municipal Corporation Of Delhi
2001 Latest Caselaw 1047 Del

ORDER

Vijender Jain, J.

1. It is a petition under Sections 14 and 17 of the Arbitration Act to make the Award a Rule of the Court. Arbitrator was appointed in Suit No.2545/93 by this Court on 15.2.1994 in view of dispute and differences between the parties in terms of arbitration Clause. As there is a dispute with regard to order of reference, I reproduce the same as under :-

S.No. 2545/93 & IA 9762/93.

2. This is a petition filed on behalf of the petitioner under Section 21 of the Arbitration Act, 1940 and in this petition it has been prayed that the dispute mentioned in para 11 of the petition be referred to arbitration in terms of the Arbitration Clause. The existence of the arbitration clause being Clause 25 is admitted by the parties. Accordingly, I direct the defendant/ respondent to refer the disputes mentioned in para 11 of the petitioner to arbitration in terms of Arbitration Clause 25 within eight weeks from today. I further direct that the defendant will not take any action against the plaintiff as contemplated in their show cause dated 5th October, 1993 till the award given by the arbitrator is made rule of the Court. With this order petitioner and IA stand disposed of. A copy of this order be given dusty to learned counsel for the respondent for compliance.

February 15, 1994 SAT PAL, J.

3. Pursuant to the said reference the dispute was referred to the Arbitrator. It seems that the Commissioner, MCD vide his order dated May 19, 1994 appointed Sh. G.S. Garg, Chief Engineer, IV, MCD as Arbitrator to adjudicate the dispute in terms of the order passed by this Court. Arbitrator gave his Award on 30.1.1995. Mr. Shiv counsel for the respondent has contended that the Arbitrator ought not have rejected the counter claim of the respondent as respondent had to incur heavy expenditure on account of delay caused to the project by the Claimant/Contractor. He has further contended that the work was not completed by the Contractor as he was negligent and the findings on this score was contrary to the record and, therefore, the Arbitrator has misconducted the proceedings.

4. I have perused the Award of the Arbitrator. The Arbitrator has discussed in detail and as a matter of fact he framed two issues with regard to the submissions of the respondents :-

1. Whether the site was handed over to the Claimant/Contractor free from any hindrances?

2. Who was responsible for the non-completion of the work?

5. On both the counts, the Arbitrator has given his findings that the site was not clear which hampered the commencement of the work. It has also taken note of the fact that the site was under encroachment by jhuggies, Transporters, Flood Control Department, permanent structures of shops etc.

6. Mr. Shiv Kumar has vigorously contended before me that the site was to be given in piecemeal method. The arguments of learned counsel for the respondent is contrary to what was contended before the learned Arbitrator.

7. In paragraph C at page 5 of the Award it was contended before the Arbitrator that clear site was handed over to the Claimant but the Claimant neglected the work. The Arbitrator personally inspected the site and in paragraph B of the Award it has been specifically mentioned that even on diverted directions there was no space sufficient to make 2(two) carriage ways. Even on the date when the Arbitrator visited on 10.1.95, the site was found encroached by jhuggies, Transporters Flood Control Department, permanent structures of shops etc. There is a definite finding in the Award that site was not free from hindrances and could not be handed over to the Contractor for execution of work by respondent and non-completion of the work was not because of the fault of the Contractor. On both the submissions of the respondent, objections have been turned down by the Arbitrator by a reasoned Award.

8. The law regarding arbitration is well settled. This Court is neither a Court of Appeal nor would substitute its own judgment for the judgment of the Arbitrator. In view of the clear cut findings on these issues, I do not want to interfere with the well reasoned Award of the Arbitrator. The objections filed by MCD respondent on this score are dismissed. It is further contended by counsel for the petitioner that even the cost imposed on the MCD has not been paid by MCD. The cost of Rs.2000/= shall also be recoverable as part of decree. The Award is made Rule of the Court. Decree in terms thereof is passed.