Subhash Chander vs Delhi Development Authority
2022 Latest Caselaw 161 Del

$~2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Date of decision: 17.01.2022
+     ARB.P. 1085/2021
      SUBHASH CHANDER                                         ..... Petitioner
                           Through       Mr. Bhupesh Narula, Adv.


                           versus

      DELHI DEVELOPMENT AUTHORITY            ..... Respondent
                   Through Mr. Akshay Chandra, Advocate on
                           behalf of Ms. Shobhna Takiar,
                           Standing Counsel
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           J U D G M E N T (oral)

1. The present petition has been filed under Section 11(6) of the

Arbitration and Conciliation Act, 1996 seeking appointment of sole

Arbitrator to adjudicate the disputes inter se the parties.

2. As per the averments made in the present petition, petitioner is a

construction contractor. Respondent had invited the tender for the work of

"D/o main land including 60 Mtr. & 45 Mtr. Master Plan road in Dwarka

project phase-II (D/o Sector-23B, 24, 25 & 26) Subhead: Providing and

laying peripheral sewer line sector-25 Dwarka Phase-II." The work was

awarded to the petitioner through acceptance letter No. F31(1695)EE/WD-

3/DDA/A/958 dated 09.11.2017 and agreement to the same effect was on

14.11.2017. Respondent is the custodian of the said agreement and as per the

contract, the stipulated dates of commencement and completion for the

above work were 19.11.2017 and 17.05.2018 respectively. However,

according to petitioner, the work could not be completed within the

stipulated time due to various hindrances on the part of the respondent, i.e.

non-availability of site and breaches of contact attributable to the

respondent. For these reasons, the work which was to be completed on

17.05.2018 was completed belatedly on 06.09.2018. Petitioner further

claims that the work was completed on 06.09.2018 to the satisfaction of the

respondent, which was duly accepted by respondent by issuing completion

certificate.

3. It was next submitted that the respondent had granted extension of

time to the petitioner but for the extended time period, no additional

compensation was given. Further, as per the agreement, petitioner was

required to submit final bill on or before 05.12.2018, however, respondent

made it impossible for the petitioner to submit the same by the due date as it

had completely failed to jointly record the final measurements in terms of

the agreement and also not provided the copies of sanctioned

extra/substituted and deviated items without which submission of final bill

was not possible. Learned counsel submitted that as per Clause 9 of the

agreement, respondent was to release the final payment to petitioner within

6 months after the completion of work i.e. on or before 05.03.2019 but the

same was not done. Thereafter, disputes arose between the parties. Since

Respondent was not releasing payments, the petitioner invoked arbitration

clause 25 of agreement and vide notice dated 31.07.2019 requested

respondent to appoint an arbitrator.

4. Thereafter, the Engineer in charge called upon the petitioner for a

meeting on 20.12.2019 and informed that he had prepared and passed the

final bill without disclosing the amount. However, he informed that the

amount of the bill was to the tune of 1.25 crore and showed his helplessness

to release the payment unless the petitioner withdraws the application for

appointment of Arbitrator. Subsequently, the petitioner agreed upon and

withdrew the said application. Thereafter, disputes again arose between the

parties and the petitioner once again invoked arbitration on 12.07.2021 and

referred the disputes to the Chief Engineer for adjudication, however, the

Chief Engineer failed to resolve the dispute within statutory period i.e. 30

days, provided under the arbitration clause of agreement. Petitioner further

on 16.08.2021 and 15.09.2021, requested the Engineer Member of the

respondent to appoint Arbitrator, which was not done. Hence, the petitioner

has filed the present petition.

5. During the course of hearing, learned counsel appearing on behalf of

respondent has disputed the averments made in the present petition,

however, submitted that the issues are triable and this Court may appoint an

Arbitrator to adjudicate the dispute between the parties subject to all issues

remain open before the learned Arbitrator.

6. Accordingly, Mr. Amar Nath, DHJS (Retd.) (Mobile: 9958697030)

is appointed sole Arbitrator to adjudicate the dispute between the parties.

7. The fee of the learned Arbitrator shall be governed by the Fourth

Schedule of the Arbitration and Conciliation Act, 1996.

8. The learned Arbitrator shall ensure compliance of Section 12 of

Arbitration and Conciliation Act, 1996 before commencing the arbitration.

9. The present petition stands disposed of accordingly.

10. A copy of this order be sent to the learned Arbitrator for information.

(SURESH KUMAR KAIT) JUDGE JANUARY 17, 2022/rk