DELHI DEVELOPMENT AUTHORITY Vs. CHANDRA KANT AND COMPANY

JUDGEMENT

(1.) JUDGMENT , J. (Oral)-

(2.) THIS is a petition under Section 33 of the Arbitration Act, 1984 filed by the Delhi Development Authority (DDA) with two-fold prayer. In the first instance, the petitioner has prayed that this court may determine the scope and extent of Clause 25 of the Agreement entered into by the parties and direct the Arbitrator to adjudicate upon the preliminary objections raised by the petitioner before deciding the reference on merit. Second prayer is that the claims filed by respondent No. 1 are beyond the scope of the arbitration clause and no award in respect thereto can be made. Mr. Ravinder Sethi, Senior Advocate appearing for the petitioner, has argued that date of the commencement of the work was 9.2.1987 and as per the statement of fact filed before the Arbitrator, the actual date of completion was 28.2.1989. He has submitted that 21 bills raised by respondent No. 1 were paid by the petitioner. The last bill was received from the respondent dated 7.1.1990 for a sum of Rs. 3,88,865.90 paise. According to Mr. Sethi this was the final bill raised by respondent No. 1. He has also submitted that the total cost of the work was Rs. 59,04,109 and on this work payment to the extent of Rs. 87,67,037 has already been made. He has submitted that a request was made by respondent No. 1 on 1.2.1990 inter alia raising 28 claims amounting to Rs. 52.89 lakhs in addition to interest. However, this figure is disputed by Mr. P.C. Markanda, learned counsel for respondent No. 1, who has stated that claim in this regard was only for Rs. 42.99 lakhs. Thereafter second request for arbitration was made by respondent No. 1 on 16.1.1992 and three more claims were added thereby making a total 31 claims. According to Mr. Setbi this figure comes to Rs. 65.95 lakhs. THIS figure is also disputed by learned counsel for respondent No. 1, who says that the amount was Rs. 54.48 lacs. Pursuant to these requests, the Engineering Member of DDA referred the disputes for arbitration. First such reference was made on 15.4.1991 and thereafter second reference was made on 5.8.1992.

(3.) NONE turning of witnesses of the petitioner after they have deposed before the Arbitrator for signing their own depositions is not a healthy practice. Statutory authority like the petitioner cannot play bide and seek from the Arbitrator who has been appointed by persona designate in terms of the agreement. Arbitration, law provides safeguards in case of either party being agrieved from the award in terms of the statutory provisions as contained in Sections 30 and 33 of the Arbitration Act. No party can be allowed to delay the arbitration proceedings. Mr. Markanda has stated that Clause 7 of the Agreement cannot be evoked in the present case as no certificate of completion has been granted by Engineer-in-Charge nor any date is fixed for completion of work. Mr. Markanda has argued that the question of repudiation will assume significance in case reference has not been made. He has argued that in this case in view of the references made twice by the persona designata the argument of repudiation does not hold any ground. Mr. Markanda has argued that neither any completion certificate was granted nor any date for completion was fixed by the petitioner in this case. Therefore, there is no question of claims being time barred. In his support he has cited case of Mis. Naraindas R. Israni v UOI5, the court held :