Din Cooperative G/H Society Ltd. vs Sh. A.S. Rana
2009 Latest Caselaw 4447 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO(OS) NO. 154/2007

                                     Date of Decision : November 03, 2009

      DIN Cooperative G/H Society Ltd.           .....Appellant
                                  Through : Mr. Anil Nag,
                                            Advocate.
                  versus


      Sh. A.S. Rana                               .....Respondent
                                     Through : Mr. B.K. Dewan,
                                               Advocate.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MS. JUSTICE REVA KHETRAPAL

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

%                               JUDGMENT (ORAL)



MUKUL MUDGAL,J.

1. This appeal challenges the judgment of the learned Single Judge dated

19th February, 2007 by which the learned Single Judge was pleased to

dismiss the objections preferred by the appellant to the award dated 24 th

October, 2005 given by Sh. V.D. Tiwari, the Sole Arbitrator, who was

appointed by this Court, as the appellant had failed to act on the request of

the respondent to appoint an Arbitrator.

2. The appellant is a Cooperative Group Housing Society. The admitted

case of the parties is that the Society had invited offers from contractors to

construct 156 residential flats on the land allotted to the Society. The offer

of the respondent was accepted and a formal contract was executed between

the parties on 25th February, 1996. The work was to commence on 1st

March, 1996 and was to be completed within 24 months. However, disputes

arose between the parties and the work remained suspended for a long period

of time. Eventually, after negotiations, the respondent was allowed to

continue with the work and the work was completed somewhere in the year

2002. The claim of completion of work by the contractor was disputed by

the Society and Sh. V.D.Tiwari was appointed by the Court as the sole

arbitrator to adjudicate upon the disputes between the parties. The learned

Arbitrator vide his award dated 24th October, 2005 awarded a sum of

Rs.75,19,230/- to the respondent.

3. The main plea urged by Sh.Nag, the learned counsel for the appellant

is that as per Clause 17 of the contract, the appellant was entitled to

liquidated damages @ Rs.1 lakh per week for the delay caused in the

completion of the work. A perusal of the judgment of the learned Single

Judge shows that this plea has not been dealt with by the learned Single

Judge in the judgment. We have asked the learned counsel for the appellant

whether this plea was urged before the learned Single Judge, who submitted

that this plea was not dealt with by the learned Single Judge. He was then

asked to show us the pleading in the memo of appeal and also show that such

a plea though urged was not dealt with by the learned Single Judge. Apart

from showing the general pleading that the learned Single Judge erred in not

appreciating the issue of liquidated damages, the learned counsel for the

appellant was unable to demonstrate to us from the memo of appeal that such

a plea was raised. Instead, the learned counsel for the appellant submitted

that the appellant had filed a 30 page written submission before the learned

Single Judge and the issue was contained therein.

4. In our view, if a plea is not addressed before the learned Single Judge,

the learned Single Judge is not bound to deal with each and every plea taken

in the written submissions before the learned Single Judge. The mere fact

that it is taken in the written submissions is of no avail to the appellant,

particularly in view of the fact that no specific averment is made on oath

before us that the plea urged was raised before the learned Single Judge.

Accordingly, we decline to permit the appellant to raise such a plea before

us.

5. We have also perused the prolix objections preferred by the appellant

before the learned Single Judge as well as equally prolix written

submissions. A perusal of the objections and the written submissions shows

that the main thrust of the appellant was on the issue of limitation, which

issue has not been addressed before us, and the objections pertaining to the

rejection of the counter claim though raised in the objection petition were

obviously not pressed before the learned Single Judge. Even the objections

raised before the learned Single Judge are as follows: -

"5.6 BECAUSE the learned Arbitrator erred in law in over- looking the fact that out of 166 flats, the Respondent completed only 53 flats and 113 flats were left unfinished. Out of the 113 flats the Respondent, under a separate Agreement/Understanding completed 70 flats in 2001 and 43 flats still remained unfinished and the balance work was got done either by the Petitioner Society or the individual flat owner at its/his own cost."

6. The above averments made before the learned Single Judge itself show

that for the completion of the contract, a separate agreement/understanding

was required to be entered into. Such an understanding or agreement has not

been shown to us and accordingly, reliance by the appellant on the erstwhile

Clause 47 of the earlier agreement, even if permitted to be raised is of no

avail to the appellant.

7. Accordingly, we find no merit in this appeal and the same stands

disposed of. All the pending applications also stand disposed of.

(MUKUL MUDGAL) JUDGE

(REVA KHETRAPAL) JUDGE November 03, 2009 sk