ASHOK KUMAR Vs. D.D.A.

JUDGEMENT

(1.) DB -1 could not assemble on 18th January, 2010, therefore the matter is taken up today.

(2.) THIS appeal under Section 37 of the Arbitration Act, 1996 has been preferred with respect to the order dated 19th May, 2009 of the learned single Judge holding the petition filed by the respondent DDA under Section 14(2) of the Arbitration Act, 1940 to be maintainable and negating the contention of the appellant of the arbitration between the parties being governed b the Arbitration Act, 1996. The facts which emerged are that the arbitrator to adjudicate the disputes between the parties was appointed as per the agreement between the parties as far back as on 23rd May, 1991. The said arbitrator resigned. The respondent - DDA, as per the agreement, was to appoint the substitute but did not appoint the substitute arbitrator. Suit no. 523A of 1997 under the provisions of the 1940 Act was filed by the appellant with the prayer for appointment of the arbitrator owing to the failure of the respondent - DDA to supply the vacancy. The said suit was disposed of vide order dated 26th May, 1998 granting two weeks more time to respondent - DDA to appoint an arbitrator and further holding that upon the failure of the respondent - DDA to so appoint the arbitrator, Hon'ble Mr. Justice J.D. Jain (Retd.) of this court would stand appointed as the arbitrator to decide the disputes.

(3.) IT appears that Justice J.D. Jain also recused himself or resigned. OMP No. 264/2006 stated to be under the 1996 Act was preferred by the appellant in this regard. The same came up before this court on 17th July, 2006 when it was informed by the counsel for the respondent - DDA that the respondent - DDA had appointed Mr. S.S. Jain as the arbitrator. In view of the said statement the said OMP also was disposed of. Mr. S.S. Jain has published an award dated 20th December, 2007 and with respect whereto petition under Section 14(2) of the 1940 Act was preferred by the respondent - DDA and from the order wherein this appeal has arisen. It was the plea of the appellant before the learned single Judge that the application under Section 14(2) of the 1940 Act was not maintainable because the arbitrator was appointed after coming into force of the 1996 Act and the previous arbitrator appointed by the DDA was later on changed under the provisions of the new Act. The learned single Judge held that since the arbitration process had started before coming into force into 1996 Act, the provisions of the old Act will apply. Aggrieved therefrom this appeal has been preferred.