M/S Techno Construction Company vs Municipal Corporation Of Delhi
2009 Latest Caselaw 3713 Del

  *IN THE HIGH COURT OF DELHI AT NEW DELHI
+           AAs No.441 & 444/2008

%                                Date of decision: 11.09.2009

M/S TECHNO CONSTRUCTION COMPANY                      ....Petitioner
                       Through: Mr. B.L. Wali, Advocate.

                               Versus

MUNICIPAL CORPORATION OF DELHI                     ... Respondent
                       Through: Ms. P. Mukherjee proxy counsel for
                                Ms. Shyel Trehan, Advocate.

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

1.   Whether 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         NO
     in the Digest?


RAJIV SAHAI ENDLAW, J.

1. Petitions under Section 11 (6) of the Arbitration Act, 1996 are

preferred with respect to the licenses granted by the respondent

MCD to the petitioner with respect to parking sites at Parade Ground

and Ajmeri Gate to Lahori Gate. The licenses granted to the

petitioner provide for arbitration of an arbitrator to be appointed by

the Commissioner, MCD. The petitioner is stated to have approached

the Commissioner, MCD for appointing the arbitrator and upon the

Commissioner, MCD not appointing the arbitrator these petitions

were preferred and notice thereof issued to the respondent MCD.

2. The order dated 1st September, 2009 in Arbitration Petition

No.441/2008 shows that the MCD had appointed a Remission

Committee to take a decision with respect to claims, inter-alia of the

petitioner for reduction of license fee with respect to the aforesaid

parking sites on various grounds. The proceedings were thus

adjourned awaiting the report of the said Remission Committee, by

the decision whereof the respondent MCD was to be guided.

3. The counsel for the respondent MCD has today informed that

the Remission Committee has in its report given some remission in

the license fee with respect to the parking site, subject matter of

Arbitration Application No.441/2008. There is some ambiguity

whether the claims of the petitioner for remission of license fee with

respect to parking site subject matter of Arbitration Application

No.444/2008 also were considered by the Remission Committee or

not. The counsel for petitioner states, they were not.

4. The counsel for the respondent MCD has also contended that

the petitioner has in spite of expiry of the term of its licenses neither

vacated the parking sites nor has paid the license fee thereof. The

same is controverted by the counsel for the petitioner who has stated

that the petitioner is entitled to renewal of license year after year for

a period of five years and has already applied for renewal but which

is not being granted by the respondent MCD for the reason of the

petitioner having not paid the license fee, disputes with respect

whereto have been raised.

5. The aforesaid would show that, existence of an arbitration

agreement between the parties and or disputes inter se covered

therewith having arisen and of this court being the appropriate court

to entertain these applications is not in dispute.

6. Though, the counsel for the petitioner has contended that the

petitioner has become entitled to appointment of an independent

arbitrator owing to the failure of the appointing authority to appoint

the arbitrator even till date, but in my view since Remission

Committee has been constituted and till the decision thereof it was

not felt feasible to appoint the arbitrator, and further in consonance

with the law laid down in ACE Pipeline Contracts Ltd. Vs. Bharat

Petroleum Corp. Ltd. (2007) 5 SCC 304, Northern Railway

Administration Vs. Patel Engineering Co. Ltd. (2008) 10 SCC

240, it is deemed appropriate to give another opportunity to the

appointing authority to appoint the arbitrator in accordance with the

agreement rather than appoint an independent arbitrator. It has

been held in the said judgments that the court in exercise of powers

U/s.11(6) of the Act can give a mandate to the appointing authority

to appoint the arbitrator as per the agreement or appoint the

arbitrator in terms of the agreed mechanism.

7. Accordingly, the Commissioner, MCD is directed to within four

weeks of today appoint the arbitrator to go into the claims and

counter claims, subject matter of the arbitration clause in the two

agreements aforesaid. In the event or the arbitrator not being so

appointed, the petitioner shall be at liberty to apply for appointment

of an independent arbitrator. This order shall not come in the way of

the respondent MCD, if entitled in law to proceed in any manner

whatsoever against the petitioner from doing so.

The petitions are disposed of.

Copy of this order be given dasti under the signature of Court

Master to counsel for parties.

RAJIV SAHAI ENDLAW (JUDGE)

September 11th, 2009 pp