Capital Publicity Service vs Municipal Corporation Of Delhi
2002 Latest Caselaw 299 Del

JUDGMENT

Mukundakam Sharma, J.

1. This judgment and order shall dispose of the petition filed by the petitioner under Section 33 of the Arbitration Act. In this petition the petitioner seeks for an order that no arbitration agreement exists between the parties or in the alternative to decide the effect of the Arbitration Clause.

2. The petitioner is engaged in the business of Visual publicity. The Municipal Corporation of Delhi, the respondent advertised for allotment of hording sites for the contract period 1990-92 i.e. for the period with effect from 1.6.1990 to 31.3.1992. The terms and conditions for allotment of hoarding sites for the aforesaid contract period were also published by the respondent. The said terms and conditions were accepted by the petitioner and the same is an admitted position in terms of paragraph 3 of the petition. The petitioner also filed a declaration/ under taking on 24.4.1990 i.e. before the start of contract period 1990-92 categorically declaring that they had read the terms and conditions for the allotment of displays rights to advertisements through hoardings and kiosks in the Municipal Corporation of Delhi areas for the period 1990-92. Therefore, the aforesaid terms and conditions for allotment of hoarding sites were a part of the contract between the parties in terms of which the hoarding sites were allotted to the petitioner as stated in paragraph 3 of the petition by the petitioner itself.

3. That the said terms and conditions duly agreed upon by the petitioner also contained amongst other clauses an arbitration clause, which reads as follows :-

"Any dispute arising out of the agreement permission granted to advertiser, for display shall be referred to the sole arbitration of the Commissioner MCD or any other officer nominated by him in this behalf either by himself or a on party's request. There shall be no bar to the reference of the dispute to the arbitrator or such an officer as is nominated by the Commissioner, even though the said officer is an employee of the MCD or might have dealt with the matter earlier or expressed his opinion thereon. In case the arbitrator to whom the matter is originally referred is transferred or vacates his office or is unable to act for any reason, the Commissioner, MCD shall be competent to appoint another person as arbitrator, who shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. No person other than the one nominated by the Commissioner, MCD shall act as Arbitrator. The decision of the Commissioner or the officer nominated by him shall be final and binding on the party/ parties. The limitation for filing claim for arbitration is 90 days from the expiry of the contract period and in case no claim is filed within this period, it shall be presumed that there is no claim."

It is stated that the contract between the petitioner and the respondent expired on 31.3.1992 and on such expiry the contract got determined in accordance with law.

4. It is submitted on behalf of the petitioner that the Municipal Corporation of Delhi did not raise any dispute or sought the consent or, otherwise, of the petitioner for any reference and that no dispute had been raised or sought to be referred within 90 days of the expiry of the period of the contract. Therefore, there was no question of any reference of any dispute to arbitration by the respondent unilaterally. It was also submitted that the respondent could not have referred any dispute beyond the period of 90 days of the expiry of the contract period as indicated in the arbitration agreement itself and. therefore, any reference made by the respondent unilaterally cannot bind the petitioner.

5. In view of the aforesaid contentions of the petitioner three main issues arise for my consideration. The first issue to determine is whether there was no arbitration agreement between the parties and, therefore, no reference to arbitration could be made by the respondent. The second question that arises for my consideration is as to whether there was any dispute raised by the respondent and even if any such dispute had been raised as the same was not raised with the consent of the petitioner and therefore, the reference is bad in law. The third aspect which needs consideration is whether the aforesaid reference by the respondent is barred by limitation as alleged by the petitioner.

6. I have also heard the learned counsel appearing for the respondent. Upon hearing the counsel appearing for the parties and on perusal of the documents, I propose to dispose of this petition answering the issues that arise for my consideration. So far the issue as to whether there was any arbitration agreement between the parties, in my considered opinion in view of the pleadings of the parties, the said issue cannot be res integra between the parties. In support of the said conclusions averments made in paragraphs 3 & 5 of the petition are relevant. It is the specific case of the petitioner that the advertisement was made by the Municipal Corporation of Delhi for allotment of hoarding sites for the aforesaid period on the terms and conditions which were duly accepted and agreed upon by the petitioner. In paragraph 5, the petitioner again has reiterated that the terms and conditions on the basis of which the hoarding sites were allotted to the petitioner contained amongst other clauses an arbitration clause. It is also the stand of the respondent that the aforesaid arbitration clause was a part of the contract entered into between the petitioner and the respondent. The extracted arbitration clause above indicates that any dispute which arises out of the agreement or permission granted to the advertiser could be referred to the sole arbitration of the Commissioner, Municipal Corporation of Delhi or any other officer nominated by him. It is also a common case of the parties herein that pursuant to the permission granted by the respondent the petitioner was allotted the hoarding sites for the contract period and executed the said contract which expired on 31.3.1992 and in that view of the matter it cannot be said that there was no arbitration agreement between the parties. The aforesaid contention raised on behalf of the petitioner that there was no arbitration agreement between the parties is, therefore, cannot be accepted and is accordingly rejected.

7. Regarding the second contention that no dispute was raised by the respondent and that no consent was obtained from the petitioner, the said contention was also scrutinised by me in the light of the records placed before me. It transpires from the records that a notice dated 13.3.1992 was sent to the petitioner intimating it the dues payable and outstanding up to 12.3.1992. The respondent has also filed a claim for arbitration in terms of Clause 30 of the terms and conditions. In my considered opinion for raising such claims, no consent or permission of the petitioner is necessary. A bare reading of the arbitration clause makes the position clear.

8. It also cannot be said that the respondent did not raise any claim/dispute in respect of the contract in question and in fact such claim was raised and filed before the Arbitrator on 22.6.1992. The contract expired on 31.3.1992 and the claims for arbitration was filed by the respondent on 22.6.1992 which is well within the prescribed period of 90 days. I therefore, hold that not only disputes do arise between the parties as various claims were filed by the respondent but also that the said disputes/claim for arbitration was filed within the period of 30 days.

9. Therefore, all the contentions raised by the petitioner in this petitioner are found to be without merit. Claim for arbitration was filed by the respondent within the prescribed period of 90 days in terms of the arbitration clause that binds the parties and, therefore, the petition is misconceived and is accordingly dismissed.