DELHI DEVELOPMENT AUTHORITY Vs. H S KHANNA

JUDGEMENT

(1.) ALTHOUGH this petition was filed under Section 34 of the Arbitration and Conciliation Act, 1996 ('1996 Act') to challenge the Award dated 6th July 2004 passed by the sole Arbitrator, inasmuch as the disputes commenced before coming into the of the 1996 Act, a preliminary issue arose as to whether the present proceedings should be under the Arbitration Act, 1940 ('1940 Act'). I.A. No. 9572 of 2006 was filed by the Delhi Development Authority ('DDA') for this purpose. The said application was disposed of on 21st July 2009 with the Court clarifying that the present case was under the 1940 Act and that the present petition should be treated as objections under Sections 30 and 33 of the 1940 Act. Accordingly the present petition has been considered as such by the Court.

(2.) THE disputes between the parties arose out of a contract awarded by the DDA in favour of the Respondent for construction of 148 houses on 36 sq.m. plots including services in Shalimar Bagh, Block A, Pocket G. An agreement dated 7th April 1980 was executed between the parties wherein the date of commencement of the work was 5th April 1980 and the date of completion was indicated as 4th October 1980. THE work was actually completed on 17th November 1984. Disputes that arose between the parties were referred to arbitration by a sole Arbitrator who was appointed by an Engineer-Member, DDA by his letter dated 1st August 1985. When the Respondent objected to the said appointment and filed OMP No. 29 of 1989 under Sections 5, 8, 11 and 12 of the 1940 Act, this Court by an order dated 24th August 1994 appointed Justice G.C. Jain (retired), as Arbitrator. On the expiry of Justice G.C. Jain, a learned Advocate of this Court was appointed as the sole Arbitrator and the impugned Award was pronounced by him on 6th July 2004.

(3.) THE learned Arbitrator found that the items claimed by the Respondent had not been included in the running bills. It was apparent from the bill of the previous contractor that no payment had been made for the various items. THE second factor was that only some of the measurement books ('MBs') could be produced by the DDA, and that too after a considerable period. THE Respondent also took a stand that there were no MBs maintained which would show the extra work done by the Respondent. Since the relevant records had not been produced by the DDA, an adverse inference was drawn against it on a preponderance of probabilities and it was held that the version of the Respondent was more probable. Accordingly, Claim No. 2 was allowed in favour of the Respondent.