MADAN CONSTRUCTION COMPANY Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) M/s Madan Construction company has assaied the reference made by the persona designate under clause-25 of the agreement thereby referring the claims of the Delhi Development Authority (hereinafter referred to as DDA). According to the petitioner, the, appointment of respondent no.3,Shri S.C. Gupta, as Arbitrator is illegal and bad in law because after the earlier Arbiratror made and published his award on the claims of the petitioner, the arbitration agreement came to an end. In order to understand the declaration sought for by the petitioner, the brief facts of the case are that the petitioner had entered into a contract with the DDA for providing of additional facilities to re-surfacing of the main road (dense carpetting). The saidagreement contained an arbitration clause No.25. Dis- putes arose between the petitioner with the respondent-DDA pursuance to which the petitioner sought for an arbitration on his claims. The Engineer Member DDA appointed Shri V.D. Tewari as the Arbitrator vide his letter dated 23rd March, 1983. The said Arbitrator made and published his award on 13th November,1989 awarding a sum of Rs.l6,500.00 in favour of the petitioner. After the making and publishing of the said award by Shri V.D. Tewari, the executive engineer DDA sought for an arbitration on account of his claims. The Engineer Member DDA vide is letter dated 18th January, 1990, appointed Shri S.C.Gupta,respondent.no.3 as Arbitrator to adjudicate upon the claims of the DDA. It is xx the reference on DDA's claims which the petitioner is challenging in this pettion, on the ground that after Shri V.D. Tewari made and published his award, the agreement came to an end. Respondent had ample opportunity to raise their claims and the present reference is barred by provisions of Order 2 rule 2 CPC.

(2.) This petition has been contested by the respondent, inter alia, on the grounds that the arbitration agreement never come to an end with the making and publishing of the award by Shri V.D. Tewari on 13th November, 1989, nor the respondents can be precluded from raising their claims before the Arbitrator pursuant to the arbitration agreement Even the provisions of Order 2 rule 2 Civil Procedure Code in the facts of this case are not applicable. The counter-claim by the office of the DDA was sent to the Engineer Member but the same was not referred by him till 8th February 1989. The claims raised by the respondent were not adjudicated upon by Sh. V.D. Tewari, the Arbitrator Moreover the objections on merits can be taken before the Arbitrator.

(3.) I have heard Mr Y.K. Kapur, counsel for the petitioner and Mr. Pradeep Dewan, counsel for the respondent. In nut shell the whole case of the petitioner is based on the fact that the respondent DDA ought to have raised its claims when the First reference was made by the Engineer Member on 23rd March, 1989, Even the letter dated 23rd March,1989. issued by the Engineer Member show that the Engineer Member permitted the DDA to subirnt its claims, subject, however to their admissibility under clause-25 of the agreement and the DDA having not done that, is precluded at this stage from raising fresh claims. He, therefore, drew my attention to order 2 rule 2 which provides as under:-