Delhi High Court
Ahluwalia Contracts (India) Ltd. vs Raheja Developers Ltd. on 14 February, 2019
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14.2.2019
+ ARB.P. 459/2018
AHLUWALIA CONTRACTS (INDIA) LTD. ..... Petitioner
Through: Mr. Shashank Garg with Mr. Tariq
Khan, Advs.
versus
RAHEJA DEVELOPERS LTD. ..... Respondent
Through: Mr. Dhruv Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J. (ORAL)
1. Mr. Dhruv Bansal, who, appears for the respondent, says that there is
no dispute with regard to existence of the Arbitration Agreement in the two
contracts, wherein, disputes have erupted between the parties. These two
contracts are dated 6.12.2010 and 11.2.2013. The first contract relates to
Civil Works, while the second contract pertains to Plumbing Works.
2. Evidently, the respondent has appointed an Arbitrator in respect of
both the contracts. Concededly, under the agreements, the parties had to
first attempt to resolve the dispute amicably. It was only when such an
attempt fails, that the parties could appoint an arbitrator in the matter. This
aspect of the matter is indicated in Clause 28.1 of the Civil Works Contract.
An identical clause is inserted in the Plumbing Works Contract as well.
Therefore, for the sake of convenience, Clause 28.1 of the Civil Works
Contract is extracted hereunder:
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"28.1 All disputes and differences of any kind whatsoever
arising out of or in connection with this Contract as also with
regard to the implementation, meaning, interpretation or
implications of the various clauses of the Contract and those of
the Contract Documents or in respect of any other matter or
thing arising out of or relating to the development and
construction of the Project whether during the progress of the
work or after their completion shall be communicated by the
Contractor in writing to the Engineer-in-Charge and all
possible efforts would be made by the Parties to sort out and
resolve all such matters of controversies, disputes and
differences, amicably with due dispatch and effective priority.
In case the Contractor and the Engineer-in-Charge were
unable to resolve such issues amicably latest within 10 working
days from the date of receipt of such communication by the
Engineer-in-Charge. In such eventuality, the Owner/Engineer-
in-Charge shall take their decision thereon without any undue
delay and preferably within next 10 working days and there
upon they shall notify in writing such decision to the Contractor
within next 5 working days."
3. Interestingly, Clause 28.3 of the Civil Works Contract confers power
of appointment of a Sole Arbitrator on the Management Review Committee
constituted by the owner, that is, the respondent, whereas, Clause 28.3 of the
plumbing works contract simply states that the disputes obtaining between
the parties will be referred to the arbitration in accordance with the
provisions of the Arbitration and Conciliation Act, 1996 (hereafter referred
to as '1996 Act').
4. Mr. Shashank Garg, who, appears for the petitioner, has a problem
with the Arbitrator being appointed by the Management Review Committee
constituted by the owner, that is, the respondent.
ARB.P. 459/2018 Pg. 2 of 4
5. After having heard counsel for the parties for quite some time,
counsel agreed that given the aforementioned clauses obtaining between the
parties in the two contracts, this petition can be disposed of with the
following directions which would secure the interest of both the parties.
6. I may also indicate that counsel for the respondent says that since the
Arbitrator was appointed by the respondent without attempting a settlement
in the matter, the parties could be referred to the Delhi High Court
Mediation and Conciliation Centre (in short 'Centre').
7. Furthermore, counsel are agreed that they would have no difficulty if
the present arbitrator is removed and a substitute arbitrator is appointed by
this Court in the matter in respect of the aforementioned contracts, that is,
the civil works contact and the plumbing works contract.
8. Accordingly, Mr. Prem Kumar, former ADJ (Cell No.9873176030) is
appointed as an Arbitrator in the matter.
9. The learned Arbitrator will be paid his fees as per the provisions of
Fourth Schedule appended to the 1996 Act.
9.1 Before entering upon reference, the learned Arbitrator will fill a
declaration as required under Section 12 and other attendant provisions of
the 1996 Act.
9.2 Learned Arbitrator will not enter upon till 15th April, 2019. In the
interregnum, the parties will approach the Centre on 28.2.2019 at 3.00 P.M.
9.3 In case, settlement is reached, the same will be placed before the
ARB.P. 459/2018 Pg. 3 of 4
learned Arbitrator for disposal of the reference in accordance with law.
9.4 Furthermore, in the event parties require further time, they will jointly
approach the Arbitrator with a written request, who will then decide as to
whether he should delay entering upon reference in the matter, keeping in
mind the timeline defined under the provisions of the 1996 Act.
9.5 Needless to say, the order passed today will not impact the merits of
the case.
10. The captioned petition is disposed of in the aforementioned terms.
RAJIV SHAKDHER
(JUDGE)
FEBRUARY 14, 2019/pmc
ARB.P. 459/2018 Pg. 4 of 4
