DELHI DEVELOPMENT AUTHORITY Vs. HARBANS LAL NARANG

JUDGEMENT

(1.) Delhi Development Authority (in short DDA) is aggrieved by the order of the Additional District Judge, Delhi whereby he dismissed the application of the DDA for recalling his order and for condoning the delay in filing the objection to the award.

(2.) Briefly stated the facts are that after the dispute arose between the parties, the Engineer Member, DDA on the request of the contractor appointed the arbitrator and referred the disputes to him. The said arbitrator made and published his award and filed the same in the Court. On filing of the award, the Court issued notice to the respondents. Engineer Member DDA and the Executive Engineer, DDA were served. The said notice was received by the Engineer Member on 8th October, 1993 but the Executive Engineer received the same on 22nd October, 1993. It is the case of the appellant that after the receipt of the notice by the Engineer Member of the DDA on 8th October, 1.993, the case was entrusted to the panel Lawyer of DDA who inspected the Court file on 22nd October, 1993. He informed the DDA on 26th October, 1993 about the award and its particulars. It is further averred that the concerned Executive Engineer in turn was asked to contact the panel Lawyer with relevant record. As the Executive Engineer received the notice of filing of the award on 22nd October, 1993, therefore, he started preparing grounds for challenging the award. He contacted the panel lawyer on 17th November, 1993. Since, on the Court record, notice of filing of award w as served through the Engineer Member on 8th October. 1993. therefore, the Court proceeded to make the award rule of the Court as the period of filing the objection had since expired on 8th November. 1993 and till then no objections had been filed. Case was taken up on 10th November. 1993 in the presence of the counsel for the DDA. Award was made rule of the Court on 10th November, 1993. According to petitioner the Executive Engineer after preparing the objections contacted the panel lawyer. He in turn informed the Executive Engineer that the award had already been made a rule of the Court on 10th October, 1993. This created a confusion in the DDA hence the matter was entrusted to the senior counsel for opinion on 24th December. 1993. He opined on 4th January, 1994 that application for recalling the order may be filed. The decision to consult the senior counsel and/or prefering an application for filing objections and condonation of delay could not be filed earlier because of the post of Chief Engineer lying vacant. In the absence of Chief Engineer (WZ) no decision could be taken. Besides giving these facts, the petitioner has also taken legal plea to the effect that there was no proper service of notice on the DDA. The Engineer Member or for that matter Executive Engineer was not competent to receive notice on behalf of the DDA. DDA ought to have been served. DDA alone can sue and be sued. The Trial Court rejected this legal objection as well as the application under Section 5 of the Limitation Act on merits. Court concluded that the service was proper and that no ground was made out for condoning the delay.

(3.) It is against this order that the present petition has been preferred, inter alia, on the ground that the delay was neither intentional nor wilful. It was due to the shuffling of the file in the office of the DDA and on account of confusion created by the Court by serving two notices on two different authorities, namely, the Engineer Member on 8th October. 1993 and the Executive Engineer on 22nd October, 1993. From the service of notice on 22nd October. 1993 there was still time to file the objection whereas award was made a rule of the Court on 10th November, 1993. In fact neither service on Engineer Member nor on the Executive Engineer could be called a proper service. The Trial Court ought to have held that the notice was not properly served on the competent authority. Moreover, the post of the Chief Engineer was lying vacant at the relevant time hence decision for filing objections was not taken in time. Delay had in fact been sufficiently explained, and therefore, the application for condonation of delay ought to have been allowed. The objections against the award should have been entertained Award was a nullity.. It was liable to be set aside because the arbitrator granted compensation for escalation in the price of material and wage rate under Clause 10(c) and 10(cc) of the Agreement which he could not do because Clause 10(cc) was to apply only when the time stipulated for the completion of the work exceeded six months. Moreover, the award on account of site expenses and overheads could not be passed. The work was delayed by the contractor, therefore, the award of compensation was against the contract.