ABDUL GAFFAR Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') for the appointment of an Arbitrator. Briefly stated the case of the Petitioner is that he had entered into a contract with the Respondent for carrying out sundry construction, in terms of the Respondent's letter dated 23.7.1992. A Legal Notice dated 28.4.1997 had been issued on behalf of the Petitioner notifying all his Claims. In this Legal Notice it had been specifically stated that the Execusive Engineer, Northern Division No. 10 of the Respondent had deliberately avoided to issue a copy of the Agreement. The Legal Notice was accompanied by a copy of a proposed application for appointment of an Arbitrator which also contained claims 1 to 15. A copy of Clause 25, the Arbitration Clause, has also been filed by the Petitioner. In its Reply the DDA has categorically denied that any Arbitration Agreement exists between the parties. Clause 29 of the Arbitration Agreement has also been reproduced which has been heavily relied upon by learned counsel for the Petitioner.

(2.) The contention in support of the maintainability of the petition is, firstly, that a perusal of Clause 29, which has been reproduced in the Reply of the DDA, will show that it was itself in nature of an Arbitration Clause. In order to substantiate this argument the learned counsel for the Petitioner had read out the first part of the first sentence of the second paragraph to the effect that the Engineer Incharge would be competent to withhold or retain those monies over which he had lien. However, it is quite apparent that he deliberately failed to read the second part of this sentence which clarifies that these monies will be withheld either till such time as the claims are determined by the Arbitrator, if the contract is governed by the Arbitration Clause, or "by the competent Court as the case may be". The Arbitration Clause is Clause 25. This argument on behalf of Petitioner was necessitated because it had been pointed out by learned counsel for the Respondent that the said Clause, Clause 25, Annexure 'C' to the petition, had been cancelled out between the parties. The original Agreement has been produced in Court. I have perused the same and find that it had been duly initialled by the Petitioner as well as by the Delhi Development Authority. Quite possibly this is the reason why there was a specific statement to the effect that a copy of the Agreement had not been supplied to the Petitioner. I am in no manner of doubt that Clause 29 is not an Arbitration Clause and merely sets out the circumstances justifying the retention of monies by way of lien.

(3.) Section 7 of the Act reads as follows: