Satya Prakash And Brothers vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 1720 Del

JUDGMENT

V.S. Aggarwal, J.

1. This is a petition, filed by M/s. Satya Prakash and Brothers (for short "the Petitioner") invoking Sub-Sections (2) and (6) of Section 11 of the Arbitration and Conciliation Act, 1996. It has been pleaded that the petitioner was awarded the work of Improvement ad strengthening of roads within the jurisdiction of Municipal Corporation of Delhi. The Petitioner entered into an agreement with the Executive Engineer of the Municipal Corporation of Delhi. The contract was governed by the General Conditions of the Agreement. The Municipal Corporation of Delhi failed in handing over unhindered site inspite of repeated verbal and written requests. The progress of the work suffered badly due to slow progress of other agencies, who were engaged to carry out the widening and Bituminous Macadam work. The petitioner had to execute work of asphaltic concrete in upper layer which was possible only when Bituminous Macadam work is completed. Due to various hindrances, the contract period prolonged for 27 months and the petitioner suffered huge financial loss. The Municipal Corporation of Delhi even failed to make monthly payment for the work executed. The petitioner had been requesting the respondent to hand over unobstructed site, remove the hindrances etc. but it had no effect. For payment of the damages and final payment of the work executed, many requests were made. It is claimed that the terms of Clause 25 of the Agreement, the petitioner served a notice requesting the appointment of the sole arbitrator with respect to the dispute mentioned in paragraph 12 of the petition. When the arbitrator had not been appointed despite the notice, the present petition had been filed.

2. Notice had been issued to the respondent and in the reply filed, an objection has been raised that the applicant had failed to make any demand with respect to the claim within 90 days of receipt of the last payment. The last payment was made on 29.2.1996 and, therefore, the claim is barred by time. It is no disputed that the is an arbitration clause between the parties, but it has been alleged that there is no disputes between the parties, which requires an adjudication.

3. During the course of submissions, the learned counsel for the respondent urged that as yet the final bill has not been submitted and consequently, the dispute can not be termed to have been so raised. In this regard , the contention has simply to be rejected because once the applicant is claiming a specific amount, which has been mentioned in paragraph 12 of the Petition and the same having been specifically admitted, disputed must be taken to have been in existence. When a party claims a particular amount, which is not admitted this implies that disputes have arisen between the parties.

4. Despite notice Municipal Corporation of Delhi had not deemed it appropriate to appoint an arbitrator. In that view of the matter, there is no option for the court except to act under Sub-section (6) of Section 11 read with Sub-Section (2) to Section 11 and to appoint an arbitrator.

5. Accordingly, the petition is allowed. Shri M.L. Jain, Former Registrar of this Court/Member of the Delhi Higher Judicial Service, is appointed as the sole arbitrator to go into the dispute, referred to in paragraph 12 of the petition. The arbitrator will fix his own fees.