Mr. Khub Chand Tyagi vs Delhi Development Authority
2009 Latest Caselaw 4061 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 12154/2007 in CS (OS) No. 368/2002

                                 Reserved on: 22nd September, 2009

%                                Decided on: 8th October, 2009

Mr.Khub Chand Tyagi                                           ...Plaintiff
                  Through : Mr. Vivekanand, Adv.

                                 Versus

Delhi Development Authority                         ...Defendant
                   Through : Mr. Ashwani Kumar Dhatwalia, Adv.


Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                              No

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

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No. 12154/2007 filed by

the plaintiff under Section 89 read with Section 151 of the Code of Civil

Procedure, 1908.

2. Brief facts are that the plaintiff was awarded some

construction work at Dwarka vide office letter dated 15 January, 1996.

Due to certain problems, the present suit was filed by the plaintiff for

recovery of a sum of Rs. 5,70,75,885/- with pendent lite and future

interest @ 18 % p.a. The said sum has been claimed for work done and

left unpaid, bills, security amount etc. A counter claim has also been

filed by the defendant.

3. In the present application, the plaintiff has contended that the

subject matter of the claims is very technical as it requires looking into

designs/proposed designs, detailed measurements, calculation of

measurements etc. Due to the sheer technicality involved, the plaintiff

has prayed that it would be expedient and in the interest of justice to

refer the claims and counter claims to arbitration with a

technical/engineer background person as the arbitrator.

4. The said application has been vehemently opposed by the

counsel for the defendant.

5. Both parties have referred to judgments in support of their

stance. Counsel for the plaintiff has referred to Afcons Infrastructure

Ltd. v. Cherian Varkey Construction Co., 2007 (1) Arb. LR 405

(Kerela) wherein it has been held that unwilling parties can also be

referred to arbitration under Section 89 of the Code of Civil Procedure,

1908. The plaintiff has also referred to two judgments passed by two

learned single judges of this court. However, in view of the judgment

referred to by the counsel for the defendant, this question has been

decided by the Apex Court in the case of Jagdish Chander v. Ramesh

Chander & Ors., (2007) 5 SCC 719 and in view thereof, I cannot

accept the contentions of the plaintiff's counsel. In the above-mentioned

case, the Apex Court has held the following, which reads as under :

"10. Learned counsel for the first respondent next contended that clause 16 of the deed of partnership discloses a clear intention on the part of the partners to settle their dispute relating to partnership by an alternative dispute resolution process. He pointed out that clause 16 required the partners to "mutually decide the disputes" or "refer the disputes to arbitration". This, according to him, is in the nature of a con- arb agreement, that is, it requires the parties to settle the disputes by negotiations (conciliation and mediation), and failing settlement by such negotiations, refer the disputes to arbitration for settlement. He submitted that the clause provides what Section 89 CPC now statutorily requires. It is contended that if under Section 89 CPC, parties can be mandated to have recourse to alternative dispute resolution processes to settle their disputes, there is no reason why the disputes between the parties in this case should not be referred to ADR process including arbitration under clause

16. This contention, though attractive, has no merit. The object and scope of Section 11 of the Act is specific and narrow. Though the power exercised under Section 11 of the Act has been held to be a judicial power (see SBP & Co. v. Patel Engg. Ltd.) the proceedings relate only to appointment of Arbitral Tribunal. The disputes as such are not before the Chief Justice or his designate for adjudication. Therefore, Section 89 CPC has no application. It should not also be overlooked 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 CPC, unless there is a mutual consent of all parties, for such reference. ..."

6. The judgment of the Kerela High Court as well as this court's

judgments referred to by the counsel for the plaintiff have been passed

before or concurrently with the Jagdish Chander (supra) judgment. In

view of the above-quoted observation reflecting the settled law of the

Supreme Court in this regard, this court cannot allow the plaintiff's

application for reference of the dispute to arbitration as there is no

mutual consent for such reference in this case.

Application disposed of accordingly.

List this matter before the Joint Registrar on 18 December,

2009 for fixing a date for the trial.

MANMOHAN SINGH, J.

OCTOBER 8, 2009 nn