Municipal Corporation Of Delhi vs M/S Rakesh Brothers
2009 Latest Caselaw 1919 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       FAO(OS) 252/2005

                                        Reserved on :   April 22, 2009
                                        Pronounced on : May 06, 2009

MUNICIPAL CORPORATION OF DELHI                             ..... Appellant
                          Through:                 None.
             versus


M/S RAKESH BROTHERS                                         ..... Respondent
                                        Through:   None.

        CORAM:
        HON'BLE MR. JUSTICE MUKUL MUDGAL
        HON'BLE MR. JUSTICE VALMIKI J. MEHTA

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?                                           No.


     2. To be referred to the Reporter or not?                    No.


     3. Whether the judgment should be reported in the Digest? No.

                              JUDGMENT

% VALMIKI J.MEHTA,J

1. This appeal, in which no one has appeared for the parties, is by the

appellant, Municipal Corporation of Delhi, challenging the judgment dated

28.4.2005 of the learned Single Judge, whereby the objections filed by the

FAO(OS) 252/2005 Page 1 appellant to the award were dismissed except the award pertaining to Claim

No.2 which was set aside and the award pertaining to Claim No.6 and

counter-claim No.1 was set aside, subject to the directions contained in para

31 of the judgment.

2. The impugned judgment is a detailed one which specifically deals

with each of the objections to the claims as awarded by the arbitrator.

3. Since the reasoning of the learned Single Judge is thorough and

extensive, sitting as an appellate court, instead of dealing with each of the

issues in detail we would simply adopt the reasoning of the learned Single

Judge which appeals to us.

4. However, for the sake of completeness we may briefly notice the

discussion in the impugned judgment. Firstly, the learned Single Judge with

respect to the plea of limitation has held that the appellant has abandoned the

plea of limitation. Independently, also the learned Single Judge on the facts

of the case has held that the appellant had issued a show cause notice on

5.5.2000 as to why compensation be not levied and the respondent invoked

arbitration on 5.6.2000. Relying on AIR 1985 Delhi 358 Shah Construction

Company Vs. MCD, the learned Single Judge has therefore held the claims

to be within limitation because limitation commences when the cause of

action accrues and the cause of action accrues when a right is infringed or FAO(OS) 252/2005 Page 2 threatened to be infringed.

5. Claim No.1 pertains to refund of the rebate wrongly retained by the

appellant and which the appellant was only entitled to do on timely payment

of the running bills. The learned Single Judge noticed that the payments

were not made in compliance with the rebate clause and, therefore, learned

arbitrator had rightly directed refund of Rs.12,381.

6. As regard Claim No.2, since it was decided in favour of the appellant

by accepting its objections and setting aside the claim under the head, there

is no challenge by the appellant.

7. Claim No.4 of Rs.2.75 lacs was allowed by the arbitrator for

Rs.1,34,729/- on account of the balance due after adjusting amounts paid

under the running bills for the works executed at site, the appellant did not

effectively contest this issue before the learned Single Judge.

8. Claim No.5 was based on clause 10CC of the contract which provided

for escalation as per formula. The learned arbitrator awarded this claim for a

lesser sum on the basis of final calculation as per the formula provided in

clause 10CC. The learned Single Judge has therefore, rightly upheld the

award with respect to claim No.5.

9. Claim No.6 pertains to refund of security deposit claimed by the

contractor and it was co-related with counter-claim No.1 of the MCD for FAO(OS) 252/2005 Page 3 recovery of compensation levied. The learned Single Judge has held that

this was an excepted matter and could not be a subject matter of arbitration.

The MCD has obviously therefore not challenged this part of the judgment

of the learned Single Judge and nor is there any cross appeal of the

respondent.

10. Accordingly, we find no error with the judgment of the learned Single

Judge which is upheld, leaving the parties to bear their own costs.

                                             VALMIKI J. MEHTA, J


                                             MUKUL MUDGAL,J
MAY 06 , 2009
ib




FAO(OS) 252/2005                                                       Page 4