S K CONSTRUCTION CO Vs. DDA

JUDGEMENT

(1.) IA No. 9563/1996 (u/S 30 and 33 of the Arbitration Act, 1940) The petitioner-contractor was assigned the work of construction of roads and paths at Gopal pur, Redevelopment Scheme of Kingsway Camp, in pursuance to agreement no. 21/EE/CD-VII/DDA/86-87. Disputes arose between the parties and in view of Arbitration Clause 25, Engineer-Member, DDA vide letter dated 21.06.90 appointed Sh. R.C.Malhotra as the sole arbitrator. The arbitrator made and published his award dated 13.02.1993. The respondent, aggrieved by the same, has filed the present objections.

(2.) It may be noticed that the objections were dismissed for non prosecution on 23.02.2005, and on the application of the respondent, were restored by the order dated 11.11.2005. The matter was thereafter put on the regular board. The matter reached for hearing on 14.02.2006, but none appeared for the parties. In the interest of justice, adverse orders were deferred. Today again, none is present for the parties. Thus, I proceed to decide the objections on the basis of the pleadings.

(3.) The crucial question considered and discussed in counter claim no.1 relates to the rescission of the contract by the respondent and the consequent right to forfeit certain amounts. The arbitrator has found that for construction of roads and paths, the availability of a road roller was essential almost from the inception of the work. As per the contract between the parties, such a road roller had to be supplied by the respondent. They failed to do so in spite of repeated demands made by the petitioner. Ultimately the petitioner made a request vide letter dated 01.04.1987 (Ex C-10) seeking permission for arranging his own road roller to enable him to complete the work, but the permission was not granted. It is only vide letter dated 08.05.1987 that conditional permission was granted to arrange the road roller. By that time, the period stipulated for completion of work, which expired on 15.04.1987, stood lapsed. In view of this, the arbitrator has come to the finding that the time was set at large and in view of respondent itself being in breach of contract for the reason aforesaid, their action in rescinding the contract and forfeiting the security deposit and the work being got done at the risk and cost of the petitioner, could not be sustained.