Mr. Madhu Kishan Gupta vs Municipal Corporation Of Delhi ...
2003 Latest Caselaw 723 Del

JUDGMENT

H.R. Malhotra, J.

1. This is a petition made under the provision of Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of the Arbitrator other than the what was named in the agreement as, according to the petitioner; the respondent failed to appoint the nominated Arbitrator within the statutory period after sending legal notice and even before filing of the instant petition.

2. It is the case of the petitioner that the petitioner was awarded the work of Houses for Safai Karamcharies. Since the respondent committed breaches of the contract by not providing drawings in time and delay occurred because of fault of the respondent and therefore, dispute had arisen between the parties and accordingly Sh.D.D. Nayar, Chief Engineer was appointed as sole Arbitrator vide letter dated 1st October, 1997.

3. Sh.Nayar, however, retired from his office in July, 2000 and as such vacancy was created and in terms of clause 25 of the general conditions of contract, the Commissioner Municipal Corporation, Delhi was to nominate any person to act as sole Arbitrator but he failed to fill up the vacancy by appointing another Arbitrator despite petitioner's letter dated 3rd October, 2000 requesting the Commissioner to fill up the vacancy and, therefore, according to the petitioner, the respondent has lost his right to appoint the Arbitrator as the respondent failed and neglected to appoint the Arbitrator in terms of the Arbitration Clause and therefore, the present petition has been filed.

4. The respondent has contested this petition and reply thereto has been filed. It is stated in the reply that the petitioner has not come to this Court with clean hands as material facts have been concealed by the petitioner. It is stated in the reply that the respondent did receive letter from the petitioner dated 3rd October, 2000 requesting the respondent to fill the vacancy because of retirement of Sh.Nayyar. It is the case of the respondent that pursuant to such letter, the Commissioner acted promptly and appointed Sh.Ravi Das (Director) CSE-I as sole Arbitrator on 24th October, 2000. According to the respondent, a copy of this notification was sent to the petitioner. It is further stated in the reply that Sh.Ravi Das expressed his inability to function as sole Arbitrator due to burden of work on his seat and the Commissioner again without loss of time, appointed Sh.N.P.Singh S.E.(West) as sole Arbitrator on 25th June, 2001 and the copy of the said notification was sent to the petitioner. Sh.N.P.Singh entered into reference and gave notices to the parties to appear before him on 2nd November, 2001. There is an affidavit of Sh.D.D.Gulati Executive Engineer in respect of what has been stated in the reply of the respondent. The petitioner has not filed any rejoinder to this reply.

5. Having heard learned counsel for the parties and also having considered the fact that respondent acted promptly and diligently for appointment of another Arbitrator after the retirement of Sh.D.D.Nayar much before receipt of statutory notice which was admittedly received on 4th January, 2001, I am of the considered opinion that the respondent cannot be held responsible for not appointing the substituted Arbitrator within the prescribed period of limitation and, therefore, no fault can be attributed to them. This being so, petitioner cannot claim a Arbitrator of his own choice as no lapse has been shown on the part of the respondent in appointing the Arbitrator. The petition has no merits and, therefore, liable to be dismissed. Dismissed as such.