M/S Exclusive Motors Pvt. Ltd. vs M/S India Tourism Development ...
2008 Latest Caselaw 1365 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                                 FAO (OS) 198/2008

        M/s Tantia Constructions Ltd.
        (formerly known as Tantia
        Construction Co.Ltd.)                 .... Appellant
                        Through Mr.S.K. Jain, Advocate
                   versus
        Delhi Development Authority & Anr. ..... Respondents
                        Through Mr.S.M. Chopra, Advocate

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S.MURALIDHAR

     1. Whether reporters of the local papers be allowed to see the judgment ? N
     2. To be referred to the Reporter or not ? N
     3. Whether the judgment should be reported in the Digest ? N

                                    ORDER

% 11-8-2008

1. This appeal is preferred against the dismissal of the

petition of the appellant for enlargement of time for making the

award. It is an admitted position that the disputes between the

appellant and the respondents were referred for arbitration vide

order of this Court passed on 19th February, 1996 and this Court

directed Engineer Members of DDA to appoint an Arbitrator. The

Engineer Members DDA appointed Shri Suresh Mehta as the

Arbitrator. Shri Suresh Mehta entered into the reference vide

letter dated 12th April, 1996. After Shri Suresh Mehta, Shri R.B.

FAO(OS) No.198/2008 page 1 of 3 Malhotra took over the charge and continued the proceedings

vide letter dated 10th September, 1997 and directed the parties to

appear before him on 22nd October, 1997. After Shri R.B.

Malhotra, Shri N.K. Sharma took over the charge and continued

with the arbitration proceedings. On 7th September, 1998, the

Arbitrator Shri N.K. Sharma passed the following order:

"....... A request for enlargement of time was received from the claimants vide No.TCCL/D/SE/ARBN/96-97/130, dated 9.9.96 i.e. after approximately five months of entering into the reference by the arbitrator.

In terms of clause 28(2) of the Arbitration Act, 1940, the Arbitrator had become functus officio much before the request for enlargement of time for making and publishing the award was made by the claimant.

Notwithstanding the fact that the arbitration proceedings had been continued by the Arbitrator, the same have got vitiated in view of the above. The case is, therefore, adjourned SINE DIE."

2. However, the appellant did not make any application even

after this order of September, 1998 and has moved the petition

before the learned single Judge after lapse of more than nine

years of the order. We do not find any error in the order of the

learned single Judge in rejecting this application as hopelessly

barred by delay and laches.

FAO(OS) No.198/2008 page 2 of 3

3. As noted earlier the proceedings were adjourned sine die

vide order dated 7th September, 1998 after recording that the

Arbitrator has become functus officio due to want of enlargement

of time. Suddenly, out of blue, after about eight years, on 4th July,

2006, Shri S.S. Jain restarted the arbitral proceedings without

there being any authority conferred upon him as an Arbitrator in

the matter or without there being any reference made to him.

The respondents vide letter dated 5th May, 2007 informed the

Arbitrator that the Arbitrator had become functus officio since

there was no extension of time by the Court. The Arbitrator

during the hearing dated 24th May, 2007 directed the appellant to

get the enlargement of time from the Court and this is how the

petition came before the learned single Judge.

4. In our opinion, the proceedings before Shri S.S.Jain were

clearly without jurisdiction inasmuch as the Arbitrator had already

become functus officio for want of enlargement of time.

5. The appeal is dismissed.

                                        Chief Justice



August 11,2008                           S. Muralidhar, J
"nm"

FAO(OS) No.198/2008                                         page 3 of 3