M/S Bhandari Builders Pvt. Ltd. vs Delhi Development Authority
2008 Latest Caselaw 1795 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

        +I.A. No. 698/2008 in CS (OS) No. 2030/2006

%                                     Date of decision : 01.10.2008

M/S BHANDARI BUILDERS PVT. LTD.                           ....Plaintiff

                                  Through:   Mr. Sandeep Sethi, Senior
                                             Advocate and Ms Renuka
                                             Arora, Advocate

                                    Versus

DELHI DEVELOPMENT AUTHORITY                               ....Defendant

                                  Through:   Mr. Rajiv Bansal and Mr.
                                             Prashant Mehra, Advocates


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether the judgment should be reported
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The Plaintiff in this suit for recovery of money seeks reference

under Section 89 of the CPC to Arbitration of a retired Judge of this

court or of any technical engineer from the Institute of Arbitrators.

The Defendant/DDA has opposed the application and has refused to

consent to Arbitration.

2. The senior counsel for the Plaintiff has on the basis of orders

dated 22nd March, 2007 in CS (OS) No. 134/2006, 5th May, 2008 in

CS (OS) No. 1385/1998, 6th August, 2007 in CS (OS) No. 139/2002 of

this court contended that reference to Arbitration can be made by

the court in exercise of powers under Section 89 of the CPC.

However, I find that in each of the said cases, the parties had

conveyed their consent to Arbitration. In the present case, the

counsel for the Defendant has conveyed that the Defendant/DDA is

not agreeable to Arbitration. The counsel for the Plaintiff also relies

upon two judgments of the Kerala High Court reported in AIR 2005

Ker 64 and 2007 (1) ARB L. R. 405 (Kerala). However, I find

that while in AIR 2005 Ker 64, the request for reference to

Arbitration was not acceded, in the other judgment a single Judge

did take the view that in appropriate case, the option of referring

unwilling parties to Arbitration is certainly available with the court.

3. The counsel for the Defendant has on the other hand urged

that the Apex court in Jagdish Chander vs. Ramesh Chander and

Others 2007 (6) SCALE 325 has held that even though Section 89

mandates courts to refer pending suits to any of the several

alternative dispute resolution processes mentioned therein, there

cannot be a reference to Arbitration even under Section 89 of the

CPC, unless there is a mutual consent of all the parties for such

reference. The Apex court further held that it was not open to the

court to appoint the Arbitrator in the absence of an Arbitration

Agreement.

4. In view of the dicta aforesaid of the Apex court, the question

need not to be delved into any longer. In the absence of consent of

the Defendant to Arbitration, the parties cannot be referred to

Arbitration in exercise of powers under Section 89 of the CPC. The

application is dismissed.

RAJIV SAHAI ENDLAW (JUDGE)

October 1, 2008/smp