Delhi High Court
Suresh Khanna vs O.P. Suri Memorial Educational ... on 2 May, 2013
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: May 02, 2013
+ Arb.P.No.10/2013
SURESH KHANNA ..... Petitioner
Through Mr.Bhupesh Narula, Adv.
versus
O.P. SURI MEMORIAL EDUCATIONAL SOCIETY (REDG)
..... Respondent
Through Mr.Praveen Mahajan, Adv. with
Mr.Shrey Raj Saxena, Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The present petition has been filed by the petitioner, Suresh Khanna
against the respondent, O.P.Suri Memorial Education Society (Regd.) only
on five grounds. The same are reproduced here below:-
"A. That parties have entered into an Agreement for construction
of additional floors in the school, original agreement of which was
being kept with school.
B. That vide letter dt. 21.03.2010 work was accepted to be
carried out as per the terms and condition of the Agreement
between the parties. The applicant has carried out and the
completed the work and has raised the final bill vide letter dt. 5th
March, 2012 but the respondent has failed to clear the dues of the
applicant.
C. That vide letter dt. May, 2012, the applicant has demanded
the Value added Tax (VAT), Income Tax, Service Tax etc. which
are to be paid by the respondent but they failed to do so.
D. That vide letter dated 12.6.2012 as the respondent has failed
to make the payment as demanded by the applicant, certified copy
of the Agreement which is with the Respondent and the said clause
includes following clause which reduced as under:-
"That in case of dispute between the parties, both the parties
shall appoint if other fails to appoint their nominee arbitrator
after intimations from other party in next 45 days, the
arbitrator appointed by one party shall be a Sole Arbitrator
in between the disputes of the parties, the Arbitrations and
Conciliation Act, 1996 would apply in the matter."
E. That the respondent has failed to make the payment and vide
letter dt. 23.6.2012, applicant had appointed Sh.V.D.Tiwari as an
arbitrator who is retired Chief Engineer of CPWD. Respondent
has failed to appoint the arbitrator, hence present application has
been filed."
2. Along with the petition, the petitioner has filed letters dated 21 st
March, 2010, 9th May, 2012, 12th June, 2012 and 23rd June, 2012. In the
letter dated 9th May, 2012 written by the petitioner to the respondent in
furtherance of the letter dated 5th March, 2012 requesting the respondent for
balance payable amount of `1,23,15,480/- to be released by the respondent
as per agreement. It was also informed to the respondent that the said dues
should be paid on or before 20th May, 2012 failing which the petitioner
would nominate an Arbitrator who is a Retired Chief Engineer of
Government Department at the risk and cost of the respondent. In the letter
dated 12th June, 2012, again the request was made by the petitioner to the
respodnent to release the amount due and also invoke clause of the
appointment of Arbitrator and also asked the respondent to supply the copy
of the agreement. In the letter dated 23rd June, 2012 it was reiterated that the
said amount has not been released by the respondent.
3. Learned counsel for the respondent has argued that the present
petition is not maintainable, as there is no contract of arbitration between the
parties. It is further stated by the counsel that the agreement dated 20 th
March, 2010 was entered into between the parties for the purpose of
carrying on construction at the site. However, in the said agreement,
nowhere it provides for arbitration clause for adjudication of the disputes
between the parties. Thus, the petitioner has initiated the proceedings in
order to harass the respondent. Copy of the agreement dated 20 th March,
2010 entered into between the parties is enclosed with the reply as
Annexure-1 which does not contain Arbitration Clause.
4. Learned counsel for the petitioner states that the petitioner had some
correspondence and relevant pages of agreement and his client would try to
locate the same. The petitioner is also unable to explain to the Court that if
the petitioner did not have copy of agreement which has an arbitration
clause in para D of the petition from where the petitioner has extracted the
Arbitration Clause as mentioned.
5. The petition itself lacks of details, thus, the prayer sought in the
petition cannot be allowed. The petition is, therefore, dismissed. However,
the petitioner is granted liberty to file the fresh petition as and when the
petitioner is able to trace out the documents including the agreement or any
communication exchanged between the parties which contain the reference
of dispute adjudicate between the parties. The contention of the petitioner
would be considered as per its own merit.
(MANMOHAN SINGH)
JUDGE
MAY 02, 2013
