Sh. Mukesh Kumar vs Municipal Corporation Of Delhi ...
2007 Latest Caselaw 2048 Del

JUDGMENT

Anil Kumar, J.

IA No. 11474/2006 in AA No. 324/2005 29.10.2007

1. This is an application by the respondent seeking condensation of delay in filing the reply.

For the reasons stated in the application it is allowed and the delay in filing the reply is condoned and the reply is taken on record.

IA No. 8000/2006

This is an application by the petitioner for recalling the order dated 17.1.2005 and not to consider the reply filed by the respondent.

The delay in filing the reply has already been condoned and the reply filed by the respondent has been taken on record.

Consequently, the application has become infructuous.

Dismissed as infructuous.

AA No. 324/2005

2. This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of the arbitrator. The petitioner has contended that he is a MCD contractor and pursuant to a short notice inviting tender dated 8.5.2000 for desilting the open nalla from Shahpur Culvert to Subhash Nagar, New Delhi he had applied and filed a tender which was accepted and he has carried out the work. According to the petitioner there is an arbitration agreement between the parties and pursuant to the work executed by the petitioner disputes have arisen. The petitioner has given a notice dated 26.5.2004 seeking appointment of the arbitrator in terms of the arbitration agreement between the parties, however, no arbitrator was appointed. The petition is contested by the respondents contending that the claim of the petitioner is barred by time and the proper procedure has not been adopted. Considering the facts and circumstances the pleas of the respondents are prima facie untenable. Prima facie the claim of the petitioner does not seem to be barred by time. The bill was passed by the respondent and the net amount was Rs. 79,993/- after deduction of Rs. 6314/-. The petitioner has been returned the earnest money of Rs. 4000/- after six months after the bill was passed on 27th May, 2001. While passing the bill an endorsement was made to pay the amount of Rs. 79,993/-. The amount was not paid nor it was categorically refused. Therefore, a notice of demand dated 26th May, 2004 was sent. Since the respondent refused to pay the amount after notice of demand and nothing has been produced prior to date of the notice that the respondent refused to pay the amount, therefore, the claim of the petitioner is prima facie within time. In any case whether the claim of the petitioner is barred by time or not is to be adjudicated finally by the arbitrator. On the pleas and contentions of the parties, it can not be inferred that the claim of the petitioner is barred by time.

3. The other dispute raised by the petitioner is that the appointment of arbitrator is sought without going through the arbitration procedure stipulated in the arbitration agreement. The arbitration agreement is in terms of Clause 25 contained in agreement No. GW-135, which is as under:

Clause 25 Settlement of Disputes and Arbitration Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials as used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract designs, drawings, specifications, estimates instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination completion or abandonment thereof shall be dealt with as mentioned hereinafter:

1. If the contract considers any work demanded of him to be outside the requirement of the contract, or disputes any drawings, record or decision given in writing by the Engineer in charge on any matter in connection with or arising out of the contract of carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instructions or decision. Thereupon, the Superintending engineer shall give his written instructions or decision within a period of one month from the receipt of contractor's letter. If the Superintending engineer fails to give his instructions or decision in writing within the aforesaid period or if the contract are is dissatisfied with the instructions or decision of the Superintending engineer, the contract may, within 15 days of the receipt of Superintending Engineer's decision, appeal to the chief engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The chief engineer shall give his decision within 30 days of the receipt of contractor's appeal. If the contractor is dissatisfied with this decision, the contractor shall within a period of 30 days from receipt of the decision, give notice to the Commissioner MCD for appointment of arbitrator failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator.

2). Except where the decision has become final, binding and conclusive in terms of sub Para (i) above disputes or differences shall be referred for adjudication through arbitration a sole arbitrator appointed by the Commissioner MCD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever another sole arbitrator shall be appointed in the manner aforesaid. Such personal shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.

4. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection by the chief engineer of the appeal. It is also a term of this contract that no person other than a person appointed by such Commissioner MCD as aforesaid should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all.

5. It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer in charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and MCD be shall be discharged and released of all liabilities under the contract in respect of these claims.

6. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceedings under this clause.

7. It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs. 1,00,000 the arbitrator shall give reasons for the award. It is also a term of the contract that if any fees are payable to the arbitrator these shall be paid equally by both the parties.

8. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the day he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitration shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the Arbitrator) shall be in the discretion of the arbitrator who made direct to any by whom and in what manner, such cost or any part thereof shall be paid and fix or settle the amount of cost to be so paid.

9. The petitioner has contended that agreement GW-135 was executed by the petitioner with the respondent which contains an arbitration agreement in terms of Clause 25. This fact has not been disputed rather what is alleged is that the petitioner should be directed to produce the original agreement. The learned Counsel for the petitioner has contended that the original agreement is with the respondent which has not been produced. The respondent also alleged that the dispute raised by the petitioner is outside the ambit of Clause 25 of the agreement which is the arbitration agreement. In totality of circumstances, it is inevitable to infer that there is arbitration agreement between the parties which is reproduced hereinabove.

10. The respondent also failed to appoint an arbitrator within four weeks of notice being given by the petitioner for appointment of an arbitrator. Even after filing of the petition the arbitrator has not been appointed. A learned Single Judge in Haryana Telecom Ltd. v. Union of India and Anr. 112 (2004) DLT 339 : 2004 (3) RAJ 147, had held that if the respondent fails to appoint an Arbitrator within the stipulated time of 30 days of the notice, and even after filing of the petition under Section 11 of the Act, it is for the Court to appoint an Arbitrator. Learned Counsel for the petitioner relied on this judgment and states that position is similar in the present case, since in the present case also notice was issued to the respondent and even after receipt of notice, no Arbitrator has been appointed by the respondent. It is contented that even after filing of the present petition till date, Arbitrator to resolve the disputes between the parties has not been appointed by the respondent. Consequently, I appoint Mr. S.M. Chopra Advocate, (Retired Additional District Judge), 181, Deshbandhu Apartment, Kalkaji, New Delhi-110019 (Mob : 9213230349, Res. : 26484158) as an arbitrator. The learned Counsel for the petitioner states that the total claim of the petitioner is of about Rs. 79,000 with interest and costs. Considering these facts the fees of the arbitrator shall be Rs. 10,000/- payable by the petitioner. The parties shall appear before the arbitrator on 26.11.2007 at 4.30 PM. A copy of this order be sent to the learned arbitrator forthwith. The parties are also directed to give a copy of this order to the arbitrator. Copies of this order be given to the counsel for the parties dusty.