Delhi High Court
Delhi Development Authority vs Shree Durga Construction Co. on 29 July, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M)No. 940/2010 & CM No. 13028/2010
% Judgment reserved on: 26th July, 2010
Judgment delivered on: 29th July, 2010
Delhi Development Authority
(through its Vice Chairman)
Vikas Sadan, I.N.A. Market,
New Delhi-110 023.
....Petitioner
Through: Mr. Rajesh Manchanda, Adv.
Versus
Shree Durga Construction Co.,
D-75, Ashok Vihar, Phase-I,
Delhi-110 052
(through its Partner)
Shri Ashwini Kumar Chodha.
....Respondent
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
CM (M) No.940/2010 Page 1 of 8
V.B.Gupta, J.
By way of present petition filed under Article 227 of the Constitution
of India by the petitioner, it is prayed that orders dated 31st August, 2009 as
well as 24th May, 2010, passed by Additional District Judge, Delhi be set
aside.
2. Respondent herein, filed a suit for recovery of Rs.20 lakh against the
petitioner. Respondent was awarded work of construction of certain houses
by the petitioner. Respondent filed recovery suit in respect of certain claims
arising out of the contract between the parties in respect of the above
mentioned construction work.
3. Respondent filed an application under Section 89 read with Section
151 of the Code of Civil Procedure (for short as „Code‟) for referring the
matter to Arbitrator on account of technical nature of the same.
4. Averments made in application under Section 89 of the Code, were
not specifically denied by the petitioner. Petitioner in its reply simply
stated;
"Pleadings are complete. Suit is fixed for Defendant‟s
evidence. Suit can be decided on the basis of
documents relied by the parties."
5. It is contended by learned counsel for petitioner that under Section
89 of the Code, Court can only refer the matter to Arbitration, Conciliation,
judicial settlement including settlement through Lok Adalat or Mediation,
when there is an element of settlement and same is acceptable to both the
parties and in such condition, the Court has to formulate the terms of
settlement and give them to the parties for their observations and after
receiving the observations of the parties, the court may reformulate the
terms of a possible settlement and refer the same to any of the aforesaid
authority for settlement of dispute between the parties. In the present case,
no such observation has been made by the trial court in the impugned order.
Since procedure set out in Section 89 of the Code has not been strictly
observed by the trial court. Hence, impugned order is liable to be set aside.
6. Learned counsel for petitioner during the course of arguments also
contended that no consent was given on behalf of the petitioner with regard
to the passing of impugned order dated 31st August, 2009. In support of its
contentions the counsel cited Jagdish Chander Vs. Ramesh Chander &
Ors JT 2007 (6) SC 375.
7. Present petition has been filed under Article 227 of the Constitution
of India. It is well settled that jurisdiction of this Court under this Article is
limited.
8. In Waryam Singh and another vs. Amarnath and another, AIR
1954, SC 215, the court observed;
"This power of superintendence conferred by Article
227 is, as pointed out by Harries, C.J., in - „Dalmia
Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951
Cal 193 (SB) (B), to be exercised most sparingly and
only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their authority
and not for correcting mere errors."
9. In light of principles laid down in the above decision, it is to be seen
as to whether present petition under Article 227 of the Constitution of India
against impugned order is maintainable or not.
10. It is an admitted case of the parties that there was no Arbitration
agreement in this case. Main contention of learned counsel for petitioner
before this Court is that petitioner never gave its consent for referring the
matter for Arbitration under Section 89 of the Code.
11. Order dated 31st August, 2009 was passed in the presence of counsel
for both parties. Relevant portion of it reads as under:
"In view of too technical nature of the suit in respect of
completion of work, recovery and payment in respect
thereof, it is desirable and appropriate that this matter
be referred for arbitration. Counsel for the defendant
has also submitted that despite being no arbitration
clause, this Court may pass appropriate orders keeping
in view the nature of the case.
Keeping in view the technical nature of the suit
and the amount claimed, it is felt appropriate in the
interest of justice that the matter be referred for
arbitration U/s 89 of CPC.
It has been agreed on behalf of the parties that
in order to save an unnecessary wastage of time
Sh.Pramod Kumar, Superintending Engineer
(Arbitration) of DDA Janakpuri, New Delhi, may
directly be appointed as Arbitrator to adjudicate the
dispute between the parties in this suit. The request is
granted, the application in hand is allowed and Sh.
Pramod Kumar, Superintending Engineer (Arbitration)
of DDA Janakpuri, New Delhi is hereby appointed as
an Arbitrator to adjudicate the dispute between the
parties in this suit.
The record of this case be directly sent to the
said Arbitrator on or before 15.09.2009 with direction
to the parties to appear before the said Arbitrator on
18.09.2009 after retaining certified copies of the
documents to be supplied by counsel for the plaintiff to
this court. It is clarified that the documents, certified
copies of which cannot be supplied may be placed on
record in Photostat by the parties before the Arbitrator
without wasting any time.
It is clarified that the plaint of the present suit
shall be treated as claim of the plaintiff, written
statement as counter statement of the defendant and
replication as rejoinder to the counter statement of the
DDA.
Nothing more remains to be adjudicated by this
court in the present suit."
12. Petitioner thereafter, filed an application under section 151 of the
Code, dated 19th September, 2009 for recalling/modification of order dated
31st August, 2009, in which it was stated that Mr. Pramod Kumar,
Superintending Engineer (Arbitration) of petitioner authority was appointed
to adjudicate the dispute between the parties. Since Sh. Pramod Kumar, had
retired on 31st August, 2009 now, the competent authority has appointed Sh.
Jai Kishan Garg, Superintending Engineer (Arbitration), Janak Puri, New
Delhi. Thus, petitioner itself prayed that Sh. Jai Kishan Garg be appointed
to adjudicate the dispute between the parties to the suit.
13. In this application it was no where pleaded that order dated 31st
August, 2009 passed by the trial court is wrong or it was not a consent
order.
14. Thereafter, petitioner filed another application under Section 151 of
the Code on 8th January, 2010, praying to appoint an Arbitrator from one of
the member as mentioned in Para 6 of this application or to appoint Sh. Jai
Kishan Garg, Superintending Engineer (Arbitration).
15. So, in these applications petitioner itself had been praying for
appointment of an Arbitrator though of its choice. However, these
applications were dismissed by the trial court. The Court in its order
observed that previous order dated 31st August, 2009, appointing Mr.
Pramod Kumar, Superintending Engineer (Arbitration) (now retired) shall
remain as it is.
16. Bare reading of order dated 31st August, 2009, shows that order
appointing Mr. Pramod Kumar, Superintending Engineer (Arbitration),
DDA, Janak Puri, New Delhi was a consent order.
17. In none of the subsequent applications filed by petitioner it ever took
this plea that petitioner was not a consenting party to order dated 31st
August, 2009.
18. In the present petition, petitioner took a somersault as its counsel
contended that no consent was given on behalf of the petitioner. Since, Mr.
Pramod Kumar, Superintending Engineer (Arbitration), was appointed with
the consent of the parties, now it does not lie in the mouth of the petitioner
to change its previous stand. The petitioner is estopped from taking a new
plea that petitioner was not a consenting party, when petitioner itself is
pleading before the trial court time and again that an Arbitrator of its choice
be appointed. The decision of Jagdish Chander (Supra) as cited by learned
counsel for the petitioner is not applicable to the facts of the present case as
petitioner himself had been pleading before the trial court for appointment
of an Arbitrator of its own choice.
19. Under these circumstances, present petition under Article 227 of the
Constitution of India is not maintainable.
20. Before parting with, I must express my deep anguish over the
manner in which this petition has been filed. Petitioner being a statutory
body, without applying its mind has filed this frivolous petition. It is well
known fact that courts across the country are saddled with large number of
cases and Government bodies are the biggest litigant in these cases. The
courts have been expressing their displeasure at the statutory bodies‟
compulsive litigation habit.
21. Further, it has been observed time and again by Supreme Court and
this Court that frivolous and meritless litigation must be dealt with heavy
hands. Time has come to fix personal responsibility on the concerned
officials. With this measure only frivolous and needless litigation can be
checked. The rise in litigation is also because the departments do not
examine the cases properly and goes on filing frivolous and needless
petition in the Court. The frivolous litigation clogs the wheels of justice,
making it difficult for courts to provide easy and speedy justice to genuine
litigants.
22. Since, there is no illegality, infirmity or irrationality in the impugned
order, the present petition being most bogus, meritless having no legal force
and frivolous one, is hereby dismissed with costs of Rs.25000/- (Twenty
Five Thousand).
23. Petitioner is directed to deposit the costs with Registrar General of
this court, by way of cross-cheque, within four weeks from today.
24. List for compliance on 31st August, 2010.
CM NO. 13028/2010
25. Dismissed.
29th July, 2010 V.B.GUPTA, J.
ab
