Shri Naresh Maheshwari vs The Commissioner ( Mcd) And ...
2009 Latest Caselaw 834 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            A.A. No.41/2009

%                     Date of Decision: 16.03.2009

Shri Naresh Maheshwari                                .... Petitioner
                   Through Mr.S.K. Goyal and Mr.A.K. Goyal,
                           Advocates for the petitioner.

                                  Versus

The Commissioner ( MCD) and Another                  .... Respondents
                    Through Ms.Shyel Trehan,       Advocate for the
                             respondent No.1.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.   Whether reporters of Local papers may be              YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                 NO
3.   Whether the judgment should be reported in             NO
     the Digest?


ANIL KUMAR, J.

*

This is a petition under Section 11(6) of the Arbitration and

Conciliation Act, 1996 by the petitioner for appointment of the

Arbitrator for adjudication of disputes which has arisen between the

petitioner and the respondents.

The petitioner contended that the respondents had invited

tenders on 19th December, 2006 for car/scooter parking site behind

Sales Tax Office, ITO, New Delhi. The petitioner had filed the bid and

his bid being the highest was accepted and the respondents vide letter

dated DC/RPC/Zone Code 07/DES 283 dated 9th August, 2007 issued

a provisional letter for running the parking site at monthly license fee

of Rs.88,733/- per month inclusive of applicable taxes for a period of

five years, subject to enhancement of monthly license fee by 5% on

satisfactory completion of every year of contract.

The petitioner contended that he expressed his acceptance by

letter dated 10th August, 2007 and deposited the security amount

equivalent to three months license fee and 11 post-dated cheques of

the license fee and one month's license fee in advance was paid.

The petitioner asserted that on 18th September, 2007, the

possession of the parking site behind Sales Tax Office, ITO, New Delhi,

was handed over and the respondent also informed the SHO, Police

Station, I.P. Estate, New Delhi, about the allotment of parking site.

However, on 24th September, 2007, Institute of Town Planners

addressed a letter to the respondent raising objections to the allotment

of the parking site on the ground that it will cause problems in their

ingress and egress and they did not allow the petitioner to operate some

part of the site allotted to him.

The petitioner pleaded that by letter dated 17th December, 2007,

he informed the respondent about the obstructions in using the parking

site. The petitioner also pointed out that the entire parking site cannot

be used as the substantial part of it was covered with malba, dustbin

and dust and other material and consequently 60% of the portion of the

parking site was not useable. In the circumstances, the petitioner

prayed for apportionment of license fee according to proportionate area

which was available for parking. The respondents, however, did not

accede to the request made by the petitioner and the dispute arose

between the petitioner and the respondents.

The agreement executed between the petitioner and the

respondents has an arbitration clause 26 and consequently the

petitioner invoked the arbitration agreement and requested for

appointment of the Arbitrator. However, since March 2008, the

respondents has not appointed any Arbitrator. It is contended that

instead of appointing an Arbitrator, the respondents issued show cause

notice and started claiming full license fee and the request made by the

petitioner for proportionate decrease of the license fee has not been

considered nor any Arbitrator has been appointed.

Though the petitioner had given the notice dated 20th March,

2008 seeking appointment of an Arbitrator in terms of arbitration

clause, the respondent had not appoint an Arbitrator till the filing of the

present petition on 28th January, 2009.

The notice of the petition was issued to the respondents and the

notice was accepted on behalf of respondent by a counsel who sought

two weeks' time on 24th February, 2009. Despite the time given by this

Court, the reply has not been filed nor any sufficient reason has been

disclosed for not filing the reply. Consequently, the right of the

respondents to file the reply is closed.

Learned counsel for the respondent has contended that in view of

the clause 26, which contemplates that no person other than one

nominated by the Commissioner, MCD, shall act as an Arbitrator, this

Court shall not be competent to appoint any other person as an

Arbitrator. The plea of the respondents is not acceptable. The notice

invoking the arbitration agreement and seeking appointment of an

Arbitrator was sent on 20th March, 2008 and received by the

respondent. Despite that for almost a year, Arbitrator has not been

appointed. In the circumstances, the respondents have lost right to

appoint an Arbitrator and it will be competent for this Court to appoint

any person as an Arbitrator.

At this stage, learned counsel for the petitioner has contended

that petitioner is a poor person and he has already suffered substantial

loss on account of the complete site not being handed over to him.

Consequently the learned counsel for the petitioner contended that an

arbitrator may be appointed by the respondent, however, petitioner

shall not be liable to pay arbitration fees to such an arbitrator

appointed by the Commissioner of Municipal Corporation of Delhi.

Learned counsel for the respondents on instructions, states that

Mr.R.P. Aggarwal, Assistant Commissioner, City Zone, can be appointed

as an Arbitrator and if Mr.Aggarwal is appointed as an Arbitrator, no

fees for the arbitration shall be payable by the petitioner.

In the circumstances, Mr.R.P. Aggarwal, Assistant Commissioner,

City Zone, is appointed as an Arbitrator to adjudicated all the disputes

raised by the petitioner. The Arbitrator shall be entitled to devise his

own procedure. Since the Arbitrator is an Official of Municipal

Corporation of Delhi, no fee will be payable by the petitioner to the

Arbitrator. Parties are directed to appear before the Arbitrator on 27th

March, 2009 at 4 PM. A copy of this order be sent to the Arbitrator

forthwith. Copies of this order be given dasti to the parties.

MARCH 16, 2009                                ANIL KUMAR, J.
"Dev"