K R ANAND Vs. DELHI DEVLOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioner in this writ petition has impugned the order passed by the learned Single Judge on 11.2.2004 dismissing his petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as Act of 1996).

(2.) The factual matrix of the case is that the petitioner is a contractor and the respondents had awarded a contract to him on 7.7.1989 for development of Land and Peripheral Sewage Drain No. 3, at Rohini, Phase-II, Delhi. This contract was awarded vide agreement No. 4/EE/FPD-4/DDA/89-90 dated 7.7.1989. This agreement contained an arbitration clause being Clause No. 25, in terms of which the disputes that arose between the parties are required to be adjudicated upon and decided through the process of arbitration. The disputes, in fact, arose between the parties in respect of aforesaid contract. Since disputes had arisen, the petitioner wrote a letter to the respondents on 5.7.1996 and preferred his claim for payment of balance amount under the contract amounting to Rs. 2,86,79,622/- with interest and requested the respondents to appoint an Arbitrator in terms of arbitration clause between the parties. The respondents appointed Mr. N.K. Sharma, Superintending Engineer, Arbitration-I, DDA as an Arbitrator but the petitioner did not appear before the said Arbitrator. Consequent thereto, the Arbitrator Shri N.K. Sharma concluded the case ex parte only after hearing the respondents. The plea of the petitioner for not appearing before the aforesaid Arbitrator is that he did not appear before the aforesaid Arbitrator as he did not entertain his claim, although the same was sent to him. Thereafter, the petitioner filed a petition before this Court which was registered as AA-82/2002 wherein a learned Single Judge of this Court by order dated 21.7.2003 directed the Engineer Member, DDA to appoint some other Arbitrator and to refer all the disputes under the contract to the said Arbitrator. The respondents did not supply the vacancy for five months after passing of order dated 21.7.2003. On 2.1.2004, the respondents appointed Mr. K.S. Chauhan as an Arbitrator in place of the earlier Arbitrator Mr. N.K. Sharma. Consequent upon appointment of Mr. K.S. Chauhan in place of Mr. N.K. Sharma, the petitioner filed an application being IA No. 9385/2003 in main Arbitration Case No. AA-82/2002 pleading therein that as the respondents have failed to supply the vacancy in place of Mr. N.K. Sharma within thirty days, the respondents are deemed to have abdicated their power to appoint an Arbitrator and requested the learned Single Judge to appoint an Arbitrator in the matter. This request of the petitioner for appointment of an Arbitrator by the Court was turned down by the learned Single Judge holding that the respondents were not obliged to supply the vacancy of Arbitrator within thirty days from the date of Court order i.e. 21.7.2003.

(3.) Aggrieved by this order of the learned Single Judge, the petitioner has filed the present writ petition seeking to set aside the order and to appoint an independent person as an Arbitrator in place of earlier Arbitrator appointed by the respondents. The learned Counsel for the petitioner has submitted that this Court may appoint any retired Judge of this Court as an Arbitrator to adjudicate the dispute between the parties under the contract. This request made by the petitioner has been opposed by the Counsel for the respondents who has contended that since the respondents have already appointed Mr. K.S. Chauhan in place of Mr. N.K. Sharma, the petitioner can appear before him to get his disputes decided. The respondents' learned Counsel has not disputed that Mr. K.S. Chauhan was appointed after five months of the Court order passed on 21.7.2003 but according to him, it was not obligatory on the part of the respondents to supply the vacancy within thirty days of the date of the Court order as provisions of Section 11 (5) of the Act of 1996 are not applicable to the facts of this case. Section 11(5) of the Act of 1996 is reproduced hereinbelow: Section 11. Appointment of Arbitrators- (5) Failing any agreement referred to in Sub-section (2), in an arbitration with a sole Arbitrator, if the parties fail to agree on the Arbitrator within thirty days from the receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.