Delhi High Court
Ram Chand Pruthi And Sons vs Delhi Development Authority on 14 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14.09.2018
+ C.M. APPL.29024/2018 IN FAO (OS) 61/2012
RAM CHAND PRUTHI AND SONS ...... Appellant
Through: Ms. Stuti Jain and Sh. Akshu Jain, Advocates.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondents
Through : Appearance not given.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K. CHAWLA
MR. JUSTICE S. RAVINDRA BHAT
%
1. This Court has heard learned counsel for the parties.
2. The applicant's grievance is that the arbitration proceedings
commenced in this case 45 years ago in 1973. During the course of these
years, several arbitrators were changed. The first award was published on
31.03.1983. This Court, however, remitted back the dispute for
consideration to the arbitrator. The second award was made by Sh. S.S. Jain
on 30.09.2008 against which the objection [OMP 6/2009] was partly
allowed. Learned Single Judge, by the judgment dated 09.11.2011 disposed
of those objections. That judgment became the subject matter of appeal in
these proceedings [FAO(OS) 61/2012]. On 09.07.2012, this Court was of the
opinion that the second award had to some extent prevail beyond the
pleadings. Therefore, while disposing of the appeal, the Court stated as
follows:
"On a perusal of the record, we find merit in the same and
learned counsel for the appellant cannot dispute the fact that
the relevant paragraphs were changed in the newly drafted
counter claim, where reference to C-1 to C-27 appeared for the
first time. Counter-claim No.4 was expanded by the appellant
by breaking it up under sub-heads 4(1),4(2), 4(3), 4(4), 4(5) and
4(6), and claim No. (5) was reworded. This was completely
impermissible according to us, as neither of the parties were
entitled to file any fresh material without leave, and the
learned arbitrator appointed afresh was required to decide the
dispute on the basis of the material on record before the earlier
arbitrator who made and published his award on 31.03.1983.
The aforesaid position is now accepted by the learned
counsel for the parties. It is the submission of learned counsel
for the appellant that the appellant will be able to establish its
counter-claim dehors Exhibits C-1 to C-27, and based on the
pleadings and documents before the original arbitrator. He
further submits that even the respondents must be confined to
the pleadings and documents on record before the earlier
arbitrator - an aspect over which there can be no dispute. It is
thus agreed that the matter be remitted back for fresh
adjudication, qua the other counter claims of the appellant i.e.
claim nos.4 and 5 as originally claimed by the appellant, in so
far as they have not been dealt with in the first award dated
31.03.1983.
Learned counsel for the respondent states that instead of
remitting the matter before the same arbitrator, the same be
sent to another arbitrator. He requests the Court to appoint
another arbitrator. This position is acceptable to learned
counsel for the appellant and thus both counsel before us
request that an arbitrator be appointed by this Court.
We appoint Ms. Maninder Acharya, Advocate as the sole
arbitrator to decide the dispute in the terms aforesaid, and the
arbitrator will be paid a fee of Rs.50,000/- apart from other out
of pocket expenses, to be shared equally by the parties. The
same shall form part of the cause."
3. The applicant's grievance now is that the arbitrator appointed in the
above order has expressed inability to proceed further with the matter on
account of her assumption of the office of ASG. In these circumstances, the
applicant has approached this Court for suitable orders to ensure that full
adjudication of all disputes is completed and an award made expeditiously.
During the course of submissions, learned counsel for the parties stated that
this Court may nominate or constitute a fresh arbitrator but with a request
that the proceedings be completed based upon the existing evidence and
taking into consideration the final directions dated 09.07.2012. It was also
submitted that the Court fix a reasonable fee to be paid to the Tribunal.
4. Having regard to the peculiar facts of this case and the long chequered
history of litigation spanning over 45 years during which there has not been
final resolution of the disputes, the Court is of the opinion that a new
arbitrator has to be appointed. Mr. Sanat Kumar, Senior Advocate, 399,
Lawyer's Chamber Block-II, Delhi High Court, New Delhi [Tel.
No.23388798, Mob. No.9810295798] is hereby nominated as Arbitrator.
The newly appointed Arbitrator is requested to complete the task by
payment of a fixed fee of `50,000/-; all endeavor should be made to
complete the proceedings and pronounce the award within eight months. The
application is disposed of in the above terms.
Order dasti.
S. RAVINDRA BHAT
(JUDGE)
A.K. CHAWLA
(JUDGE)
SEPTEMBER 14, 2018
