Naresh Gupta vs Municipal Corporation Of Delhi
2009 Latest Caselaw 3934 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    ARB.APPL.84 /2009

%                           Date of decision: 24th September, 2009

NARESH GUPTA                                       ....Petitioner
                             Through: Mr. Raman Kapur, Advocate

                                    Versus

MUNICIPAL CORPORATION OF DELHI ... Respondent
                             Through: Mr Himanshu Upadhyaya with Mr Nitin
                             Kumar, Advocates.


                                  AND

                     ARB.APPL.99/2009

SHRI ROHTAS                                        ....Petitioner
                             Through: Mr. Raman Kapur, Advocate

                                    Versus

MUNICIPAL CORPORATION OF DELHI ... Respondent

                             Through: Mr Himanshu Upadhyaya with Mr Nitin
                             Kumar, Advocates.

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. Notices of these petitions under Section 11 of the Arbitration

Act, 1996 were issued to the respondent/MCD on 3rd March 2009 and

13th March 2009 respectively. In spite of several dates, no reply has

been filed till date. In fact, on the last date i.e. 18th September 2009,

none appeared for the MCD and though the counsel for the

petitioner in both the petitions was heard, in the interest of justice,

orders were deferred. The counsel for the respondent has today

informed that he has not received the documents from the MCD as

yet and as such the replies could not be filed. Considering the nature

of the petitions, it is not deemed appropriate to defer the matters

further.

2. On a reading of the averments in the petitions, the claims, for

adjudication whereof arbitration is sought, appear to be time barred

and long dead ones. However, counsel for the petitioners has

contended that as per the agreement between the parties, the

petitioner was to make a demand for arbitration within 90 days of

"receiving the intimation from the Corporation or any officer

authorized in this behalf that the Bill is ready for payment." It is

contended that no intimation was given to the petitioner of the Bill

being ready for payment and as such the petitions are not barred by

time. Reliance in this regard is placed on Major (Retd.) Inder

Singh Rekhi Vs. Delhi Development Authority, (1988) 2 SCC 338

and on EN Veeka Construction Co. Vs. DDA 1999 (1) Arb. LR 298

(Delhi) as well as on Avinash Sharma Vs. Municipal Corporation

of Delhi 2007 (4) Arb. LR 147 (Delhi). Attention is also invited to

Section 25 (3) of the Contract Act. It is contended that the promise

by the respondent to make payment to the petitioner is found in the

Noting dated 6th September 2007 of the Executive Engineer (DEMS)

Narela Zone of the respondent to the Director CSE of the MCD,

Narela Zone. Though the said noting is not addressed to the

petitioners, it is contended that the same was in response to the

representation made by the petitioners, as recorded in the said

noting also.

3. Counsel for the respondent has contended that the petitioners

cannot sleep over their rights and that from the letter of September

2008 of the Advocate for the petitioner in both cases to the

Commissioner MCD and from letter dated 21.07.2006 of petitioner in

AA 84/2009 to the Director/CSE/MCD Narela Zone, it is evident that

the final bill had been prepared and the petitioner was aware of the

same. He has also contended that the noting dated 6th September

2007 cannot be construed as a promise by the respondent to the

petitioner. He has contended that the claims are time barred.

4. In view of the aforesaid controversy, it appears that the

question as to whether the claims are within time or not requires

investigation. The Supreme Court has in National Insurance Co.

Ltd. Vs. Boghara Polyfab Pvt. Ltd. AIR 2009 SC 170 held that the

issue of whether the claim is a dead/long barred claim or a live claim

is one which the Chief Justice/his designate may choose to decide or

leave to the decision of the arbitral tribunal. In the facts and

circumstances aforesaid of these two cases, the issue cannot be

decided without further investigation and is as such left for decision

of arbitral tribunal. The respondent shall be at liberty to set up

defence of the claims of the petitioner being barred by time before

the Arbitral Tribunal.

5. The agreement of the parties was for arbitration by the

nominee of the Commissioner, MCD. However the Commissioner

MCD has forfeited the right to appoint the arbitrator. The Petitioners

have become entitled to appointment of an arbitrator by the Chief

Justice/his designate. Mr. S.M. Chopra, Retd. Additional District

Judge is appointed as the Arbitrator to adjudicate the disputes

subject matter of both petitions. Since the claims in both the

petitions are small, the consolidated fee of the Arbitrator in both the

petitions is fixed at Rs. 30,000/- besides out of pocket expenses and

to be borne initially by the petitioner, subject to award as to costs.

The parties to appear before Arbitrator with prior appointment on

23rd October 2009.

Order be given Dasti as prayed for.

RAJIV SAHAI ENDLAW (JUDGE)

September 24th, 2009 neelam