JAGBIR SHARMA Vs. MCD

JUDGEMENT

(1.) This is petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 for appointment of an independent arbitrator and for reference of the disputes between the parties to him for adjudication. The material facts are not in dispute. That an agreement had been executed between the parties in connection with improvement/strengthening of Basant Marg, Vasant Vihar, New Delhi is common ground. That a dispute in relation to the payment of the amount claimed by the petitioner for work allegedly undertaken by him has arisen is also evident from the correspondence placed on record. That clause 25 of the General Conditions of Contract, governing the work in question, envisaged reference of such disputes to an arbitrator, to be appointed by the Commissioner of Municipal Corporation of Delhi is manifest from a reading of the said clause. That in terms of a communication dated 17th November, 2004, the Commissioner was called upon to appoint an arbitrator to adjudicate upon the petitioner's claim as set out in the said letter is also admitted nor is it denied that the receipt of the said letter notwithstanding the Commissioner has not made any appointment so far.

(2.) Mr. Sandeep Sharma, counsel appearing for the petitioner argued and in my opinion rightly so that the Commissioner had forfeited his right to make an appointment having regard to the decision of the Supreme Court in Datar Switchqears Ltd. v. Tata Finance Ltd. & Anr., (2000) 8 SCC 151. On behalf of the respondent, it was on the other hand, submitted that claims made by the petitioner were legally untenable and factually unjustified. It was submitted that the petitioner had abandoned the work and failed to remove the deficiencies, despite a notice served upon him to that effect. Reliance was in this connection placed by the respondent upon a communication dated 26th February, 2005 filed along with the objections. It was contended that in the light of the said communication, the petitioner's claim that it has completed the work satisfactorily and that the payments were being withheld unjustifiably was wholly any basis.

(3.) In a petition under Section 11 it is neither necessary nor proper for this Court to examine the merits of the claim made by the petitioner. All that this Court is concerned with is whether an arbitration agreement exists between the parties and if so, whether disputes have arisen which would call for a reference to an arbitrator for adjudication. Both these aspects, as noticed above, have been satisfactorily demonstrained in the instant case. The existence of the arbitration Clause is not in dispute. The fact that the petitioner has made a claim, which the respondent denies thereby giving rise to a dispute is also evident. Whether or not the petitioner will succeed in his claim before the arbitrator is a matter for the arbitrator to examine and not for this Court to prejudge at this stage. All that need be said is that the respondent shall be free to urge all such defences, as may be open to it on facts as also in law before the arbitrator including the defence that the petitioner has abandoned the work halfway and failed to rectify the defects despite notice issued to him.