N.K. Traders vs Delhi Water Supply And Sewage ...
2001 Latest Caselaw 1261 Del

JUDGMENT

J.D. Kapoor, J.

1. This is a petition under Sections 8 & 20 of the Arbitration Act, 1940 for filing the arbitration agreement and appointment of arbitrator.

2. So far as arbitration agreement is concerned, there is no dispute. However, the solitary objection raised by the respondents is that the disputes raised and sought to be referred by the petitioner for arbitration are beyond the terms of the contract and purview of the arbitration agreement.

3. The claim of the petitioner is on account of having executed extra work. According to the respondent, specific clause (clause 2) was incorporated in the contract agreement to the effect that "no extra payment shall be made except items taken in Bill of Quantity". The said clause reads as under:-

"The contractor has to lay sewer lines on the existing gap by connecting both the ends of sewer line including plugging its both the ends and making all necessary arrangements for completing the gap including pumping of water, removing of plugs etc. completely. No extra payment shall be made except items taken in B.Q. The space is very limited for working and storing the materials also."

4. The petitioner entered into a contract with the respondent no.1 for the execution of a contract for the laying of L/J 1400 m.m. diameter connection of trunk sever line near Geeta Colony sewage pumping station, Shahdara, Delhi.

5. Admittedly at the time of taking the contract, the petitioner was informed that it was a new sever line and the usual drainage which is pumping out of rain water etc. will have to be done for executing the work. On the start of the work, it was noticed that both sides of the manholes were filled with at least 15 ft sullage as Some societies had made illegal connections in the sewage line. However, respondent department did not take any decision on the representation of the petitioner for emptying the manholes to enable the petitioner to complete the inter connection work.

6. Learned counsel for the petitioner has effectively countered the contention of the respondent that the claim raised by the petitioner is beyond the terms of the contract by relying upon aforesaid clause 2 of the agreement.

7. The decision to construct the extra manhole was taken by the respondent no.1 only on 20th January, 1994 because the respondent could not decide as to how the two ends were to be connected. The grievance of the petitioner is justified that he had no contractual liability to pump out the sewage from the completed sewer as several connections had been given by the respondent and what was agreed upon was to clear the natural inflow which might be there in an unused sewer because of seepage of rain water or subsoil water and not sullage from a used sewer.

8. Further the respondent kept on extending the time without there being any request on the part of petitioner and rather the petitioner informed the respondent that it was not possible to complete the work. The respondent served the petitioner with a show cause notice dated 21st March, 1994 which was duly replied by the petitioner. Since there was a dispute between the parties the petitioner served a notice of payment dated 7th June, 1994 on respondent no.1 requesting for the appointment of the Arbitration Act, 1940.

9. However mere contention of the learned counsel for the respondent is that since the petitioner has already received a sum of Rs.1,86,305 as full and final payment without protest or objection whereas the claims being raised by the petitioner are to the extent of Rs.55,81,525.40 and since during the pendency of the petition the petitioner had sought extension of time to complete the work which was extended up to 31st July, 1996, the instant petition is not maintainable.

10. As is apparent from the aforesaid plea of the respondent the question of completing the work against the payment of Rs.1,86,305 towards full and final payment dit not arise as the time for completion of work was extended in the year 1996 itself. However the reliance placed by the counsel for the respondent upon the letter dated 19th July, 1996 sent by the petitioner to the respondent seeking extension of time itself tends to support the allegations and averments of the petitioner. It was specifically pointed out by the petitioner in this letter that the work could not be completed within the time due to various decisions taken by the department and hindrances that occurred during the execution of the work. The petitioner has also pointed out in this letter that the existing sewer line of 1400mm dia was near to the residential houses of the colonies and it was very difficult to lay such deep sewer pipes near the existing residential houses and therefore it took three to four times more than the scheduled time.

11. However other deficiencies pointed out were that the electricity in the area was very irregular and due to frequent electric break downs the trenches were collapsed and making the arrangement of Generator as stand-by arrangement resulted in delay. Similarly the sewer line of group housing societies was connected with existing 1400 mm dia sewer line which made it most difficult to complete the gap.

12. In view of the averments made by the petitioner and the stand taken by the respondent, by no stretch of imagination the payment of Rs.1,86,302 received by the petitioner can be termed as a full and final payment.

13. There do exist certain disputes between the parties that need to be settled by the Arbitrator. Accordingly the petition is allowed. The petitioner has agreed to the Arbitrator that may be appointed by the respondent within one week for deciding the disputes and claims of the petitioner. However any observation made in this order would not tantamount to expression of any opinion on merits of the contentions of the parties. The Arbitrator shall not be influenced by any observation made in this order.

14. With these observations the petition stands disposed off.