Delhi High Court
Utility Engineers (I) Ltd. vs Gujarmal Modi Hospital And ... on 15 February, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 1284/1992(under Sections 30 and 33 of the Arbitration Act 1940)
1. The petitioner was awarded the work by the respondent in relation to the construction of Gujarmal Modi Hospital and Research Centre for Medical Sciences. The terms and conditions of the Contract contained an Arbitration Clause and in view of the disputes having arisen the petitioner invoked the Arbitration Clause. The respondent apparently did not exercise its right to appoint the Arbitrator and thus the Petitioner appointed Shri J.R. Bhalla, as the Arbitrator who proceeded in the matter and made and published his award on 14.12.1990.
2.The respondent aggrieved by the same has filed the present objections.
3. The only objection set out is that the appointment of the Arbitrator was not in terms of the Arbitration Clause. The respondent did not participate in the Arbitration proceedings. Clause 37 of the terms and conditions of Contract is the Arbitration Clause. The Arbitration Clause can be invoked in case the decision of the Architect is not satisfactory to any of the parties. Notice is to be issued to the other party for reference of disputes to Arbitration specifying the disputes. Such Arbitration can be by a Sole Arbitrator in case of Agreement or in failure of such Agreement one Arbitrator each to be appointed by both the parties who in turn would appoint the umpire.
4. The respondent has stated in the objections that the Arbitration Clause contained in the Agreement dated 29.9.1983 was not adhered to and the respondent did not satisfactory complete the work. The verification of the measurement was still going on when the petitioner received letter dated 22.2.1990 issued by the counsel for respondent No.1 appointing respondent No.2 as an Arbitrator on their behalf. This was followed up by a letter dated 15.3.1990 of the Arbitrator. The petitioner addressed a letter dated 23.3.1990 to respondent No.2 stating that his appointment was not in terms of the Arbitration Clause.
5. In the reply filed by the respondent it has been stated that the Arbitration Clause was invoked vide letter dated 13.10.1989 and letter dated 30.10.1989 was in continuation of the said letter.
6. A perusal of the letter dated 13.10.1989 of the petitioner shows that the history of the dispute had been set out along with the Arbitration Clause. This letter had been addressed to the Architect, Engineers and Town Planners, M/s. Kothari Associates Private Limited appointed by respondent No. 1 asking for a decision failing which the matter would be referred to the Arbitrator. It is only thereafter vide letter 30.10.1989 that the complete statement of claim was sent to the said consultants and thereafter the Arbitration Clause was taken recourse to. The respondent did not appoint their Arbitrator and thus in the absence of the same the matter was proceeded with by the Sole Arbitrator making and publishing his award for the sum of Rs.39,48,689/- along with interest @ 12 per cent per annum from the date of the award till the date of payment or the date when the award was made rule of the Court whichever is earlier.
7. The award is a non-speaking award.
8. Learned counsel for the respondent is present in the Court but is not able to advance any submissions in support of his contentions.
9. In view of the aforesaid position there is no merit in the objections and the same are accordingly dismissed.
CS (OS) No.70/1991
1. In view of the objections having been dismissed, the award dated 14.12.1990 by the Sole Arbitrator Shri J.R. Bhalla is made rule of the Court. The petitioner shall also be entitled to future interest @ 9 per cent per annum (simple interest) from the date of decree till the date of realisation. Parties are left to bear their own costs.
2. Decree sheet be drawn up accordingly.
