ANANT RAJ AGENCIES Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) By this Judgment I shalli dispose of two sets of applicalions under Order IX Rule 13 and Section 5 of the Limitation Act. These applications had been filed by the Respondents pursuant to the Award passed in their respective eases having been made Rule of the Court.

(2.) In the first case, disputes had arisen between the parlies in respect of the construction of houses under self Financing Scheme (SFS) at Sheikh Sarai Pocket B, New Delhi. These disputes were referred to the Sole Arbitration of Shri K.D. Bali. He made and published his Award at New Delhi on 12.0.1991. Suit No. 1947/91 was initiated by the petitioner for filling of the Award and making it Rule of the Court. The consequence was that the Delhi Development Authority (DDA) filed Objections under Sections 30 and 33 of the Arbitration Act, 1940, which were numbered as I.A. 1.1630/91. Issues were framed on 10.8.1994 and on 28.2.1995 the case was adjourned for hearing as 'Short Cause' to 14.8.1995. On this dale the Court had observed that "it is not necessary to record any evidence, even by way of affidavit, in as much as the objections raised are capable of being substantiated by reference to record of the arbitration proceedings, correctness whereof is not under challenge." On 29.8.1995 the case was adjourned to 26.10.1995 and thereafter by orders dated 25.3.1990 the case was adjourned to 1.8.1996. On 19.8.1996 the ease was heard, the Objections were found meritless, and the Award was confirmed. The exception was in respect of the interest awarded by the Arbitrator, which was modified from 17.5% per annum with quarterly rests to simple interest at 17.5% per annum. Since no payment was made against the Award, the Contractor/Petitioner initiated Execution proceedings, which were numbered as Ex.143/96. Notice was issued and the DOA was served 3.12.1996. As no one had appeared on 18.r2.1996 the proceedings were a adjourned to 22.1.1997. Shri V.K. Sharma, learned counsel for the DDA in these proceedings also, entered appearance on that date. These facts are significant in the face of the stance of the DDA that it was 'shocked' to learn of the Award having, been made Rule of the Court in February, 1997. On 19.2.1997 LAs. 1642/97 under Order IX Rule 13 and 1643/97 under Section 5 of the Limitation Act were Filed by the Delhi Development Authority. Arguments on these applications have been heard by me and both these applications will be disposed of by the present Orders. It has been averred in I.A. 1642/97 "that the matter was listed in the category of 'short cause' and it reached for hearing all of sudden before this Hon'ble Court on 1.8.1996. The Hon'ble Court heard arguments of the Counsel for the petitioner and made the award Rule of the Court without hearing the arguments of Counsel for the respondent/Delhi Development Authority on merits." It has also been pleaded that around 21)0 matters were listed in the short cause matters. The story put forward by the Applicant is that in the month of February 1997 it decided to file an application for bringing on record the additional objection that the Sole Arbitrator was related to the Claimant. This application was listed on 17.2.1997 and in the course of hearing the Respondent was shocked to learn that the matter had already been decided. An inspection was carried out and this information was found to he correct. It is further averred that the Order dated 1.8.1996 passed by the Court is an ex-parte order passed without hearing the counsel for the Respondent on merits. It will be relevant to clarify that the Order whereby the Award was made Rule of the Court, with the modification on the question of interest, is dated 19.8.1996. It is thereafter averred that the non-appearance of the counsel for the DDA on 1.8.1996 was neither intentional nor wilful and it was a result of over-sight. It is paradoxically staled that the setting aside of the ex-parte order will not prejudice the petitioner, but in the next breath it is stated that the DDA will suffer irreparable loss to the tune .of Rs.42 lacs. The prayer is for setting aside of the decree dated 1.8.1996, which date is totally incorrect 1.A. 1643/97 under Section 5 of the Limitation Act is based on the same fads. In its Reply the petitioner has submitted that the provisions of Order IX Rule 1.3 cannot be invoked since no ex parte decree has been passed. The Court heard the counsel for the petitioner and had also considered the Objections filed by the Respondent on merits. It is further submitted that Order IX Rule 13 lias no application to Orders under Section 17 of the Arbitration Act, 1940. It is further averred by the petitioner that on 1.8.1996 "the mailer reached on its turn and the counsel for the petitioner was heard at length". It has been denied that the respondent ever met the counsel for the counsel for the petitioner and told the former that the matter is listed in 'Short Cause'. It has been specifically denied that there Was any relationship between Shri K.D. Bali, the Sole Arbitrator and late Anant Ram.

(3.) The contention of Mr. V.K. Sharma, learned counsel for the DDA is that, as envisaged under Chapter XVII Rule 2 of the Original Side Rules of this Court, actual date has to be fixed. Chapter XVII Rule 2 reads as under: