Delhi High Court
Vijay Power Generators Ltd. vs New Delhi Municipal Council & Anr. on 13 September, 2017
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.09.2017
+ ARB.P. 523/2017
VIJAY POWER GENERATORS LTD ..... Petitioner
versus
NEW DELHI MUNICIPAL COUNCIL & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. M.S.Rahman, Adv.
For the Respondents : Mr. Anil Grover, Standing Counsel with Ms.
Kanika Singh, Mr. Jitendra Kr. Tripathi, Mr. Rishi
Vohra and Mr. Mishal Vij, Advs.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. By this petition under Section 11 of the Arbitration &
Conciliation Act, 1996 (hereinafter referred to as the Act), the
petitioner seeks appointment of Sole Independent Arbitrator to
adjudicate the disputes between the parties.
2. The petitioner was awarded the work relating to replacement of
200 KV A DG Sets at Palika Kendra Building.
3. As per the petitioner, the petitioner duly completed the work,
however, the payment was not released leading the petitioner invoking
the arbitration clause.
4. The arbitration clause between the parties as contained in the
agreement reads as under:-
"CLAUSE 36.0 Settlement of disputes by arbitration:
Except where otherwise provided in the contract, all
questions and disputes relating to the meaning of the
specification, designs, drawings and instructions
hereinbefore mentioned and as to the quality of
workmanship or materials used or the work or as to any
other question, claim, right, matter or thing whatsoever
in any way arising out of or relating to the contract,
designs, drawings, specifications, estimates, instructions,
orders or these conditions or otherwise concerning the
works or the execution or failure to execute the same
whether arising during the progress of the work or after
the completion or abandonment there or shall be referred
to the sole Arbitration of the person appointed by the
Chairperson NDMC, at the time of dispute if there be no
Chairperson, the administrative head of the NDMC at the
time of such appointment. There will be no objection to
any such appointment if the arbitrator so appointed is a
Government servant or NDMC employees and that he
had to deal with the matters which the contact relates
and that in the course of duties as Govt. servant or
NDMC employees he had expressed views on all or any
the matters in dispute or difference. The arbitrator whom
the matter is originally referred being transferred or
vacating his office of being unable to act for any reason,
the chairperson of administrative head as aforesaid at
the time of such transfer vacation of office or liability to
act shall appoint another person to act shall as arbitrator
in accordance with the terms of the contract. Such person
shall be entitled to proceed with the reference from the
stage at which it was left by his predecessor. It is also a
term of this contract that no person other than a person
appointed by the Chairperson or administrative head of
the NDMC as aforesaid act should act as arbitrator and
all. In this case, parties have agreed that the arbitrator
or umpire will give reason for the award. Subject as
aforesaid, the provisions of the arbitration Act, 1940 or
any statutory modification or enactment thereof and the
rules made there under and for the time being informed
shall apply to the arbitration proceedings under this
clause. The arbitrator(s) may from time to time with the
consent of the parties, enlarge the time for making and
publishing the award.
It is also a term of the contract that if the contractor does
not make any demand for arbitration in respect of any
claim(s) in writing within 90 days of receiving the
intimation from the NDMC that the final bill is ready for
payment the claim of the contractor shall be deemed to
have been waived and absolutely barred and the NDMC
shall be discharged and released of all liabilities under
the contract in respect of these claims.
It is a term of this contract that the party invoking
arbitration shall specify the disputes to be referred to
arbitration under this clause together with the amount(s)
in respect of each dispute. Notwithstanding anything
contained in this agreement the parties shall not be
entitled to revoke reference of dispute to the Arbitration
after acceptance of the final payment until it is so
recorded on the bill that the same was being received
under protest."
5. The petitioner invoked arbitration clause vide notice dated
26.12.2015 which was followed by reminder dated 05.08.2016.
6. The petition was initially filed on 20.02.2017, but remained
under defect and was re-filed on 11.08.2017. Since the petition was
not refiled within the permitted period, the petition shall be deemed to
have been filed on 11.08.2017.
7. Learned counsel for the respondent submits that the Arbitrator
has been appointed by the competent authority on 12.09.2017.
8. Perusal of order dated 21.08.2017 shows that the respondent
was present when the petition was listed. Admittedly, the power to
appoint Arbitrator has been exercised by the Respondent after the
petitioner has filed this petition and much after the expiry of the
period of 30 days as contemplated by the Act.
9. In view of the judgment of Supreme Court in the case of DATAR
SWITCHGEARS LTD VS. TATA FINANCE LTD. & ANR (2000) 8 SCC
151, the respondents have forfeited their right to appoint an Arbitrator
in terms of the arbitration clause. Accordingly, a Sole Independent
Arbitrator is liable to be appointed.
10. Learned counsel for the respondent submits that, without
prejudice to her rights and contentions on merits of the claim, she has
no objection to the appointment of a Sole Arbitrator by this court to
adjudicate the disputes between the parties.
11. Accordingly, Mr. Rishi Manchanda Advocate (Mob #
9911681178) is appointed as the Sole Arbitrator to adjudicate the
disputes between the parties. This is subject to the Arbitrator making
the necessary disclosure under Section 12 of the Act of not being
ineligible under Section 12(5) of the Act.
12. The Arbitral Tribunal shall examine the claims of the petitioner
and the counter claims, if any of the respondents.
13. The fee of the Arbitrator shall be fixed in accordance with
Schedule IV of the Act.
14. The parties are at liberty to approach the learned Arbitrator for
elucidating the necessary disclosures and for further proceedings.
15. The petition is accordingly disposed of.
16. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
SEPTEMBER 13, 2017
'rs'
