KHUB CHAND TYAGI Vs. DJB

JUDGEMENT

(1.) This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') for appointment of an independent arbitrator.

(2.) THE parties to this petition entered into an Agreement dated 15th November, 2000 for replacement of old water line in Karol Bagh, New Delhi. The petitioner is a partnership concern of Engineers and Contractors and the respondents are the Delhi Jal Board and its functionaries. Clause 25 of the Agreement between the parties providing for settlement of disputes by way of arbitration reads as follows: - 'Clause 25: Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality or workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works of execution or failure to execute the same whether arising during progress of the work or after completion or abandonment thereof shall be referred to the sole Arbitration of CEO, Delhi Jal Board or any person nominated by the CEO on his behalf. The award of the Arbitrator shall be final conclusive and binding on all parties to this contract. Any letter, notice or other communications dispatched to the contractor relating either arbitration proceeding or otherwise whether through the post or through a representative on the address last notified to the Board by the contractor shall be deemed to have been received by the contractor although returned with remarks, refused, undelivered where about not not known or words to that effect or for any other reasons whatsoever. It is further agreed that the award as and when made for an amount exceeding Rs. 10,000/ - by the arbitrator shall be speaking. It is further provided by agreement that the party desiring to invoke arbitration clause shall distinctly specify the disputes sought to be determined by arbitration. Only dispute or disputes out of such disputes shall be referred to the arbitration as any be determined by the CEO or his nominee as arising out of and relating to the contractor.'

(3.) A learned Single Judge of this Court in B.W.L. Ltd. v. M.T.N.L. 2000 IV AD 165 crystallized the position of law in relation to the delayed response to the request for appointment of an arbitrator as under: - 'It has now become common place for persons who have retained this power of appointment of an Arbitrator, not to act at all or to act with such obduracy as to render an Arbitration clause totally meaningless. The vehemence with which the present petition was opposed, often caused me to forget that it was only the appointment of an Arbitrator to adjudicate upon the claims raised by both parties and not the disposal of objections, that was in debate. After hearing lengthy arguments it would be an abdication of judicial duty if the Respondents were still permitted to make an appointment of the Arbitrator. The State is expected to act without arbitrariness and with fairness and in furtherance of the well -being of its citizens. It is also expected to know the law, especially as laid down by the Supreme Court. It cannot be excused if its action tantamount to emasculating the laws -i.e. of expeditious disposal of disputes through arbitration.'