GURDEEP SINGH Vs. N D M C

JUDGEMENT

(1.) The petitioner was awarded contract of 69 Group 'A' Parking sites, 12 Group 'B' parking lots and 16 Group 'C' parking lots vide Letter of Award dated 27.8.2004 on a monthly licence fee of Rs.3,07,000/-. This contract was for a period of two years from the date of allotment. The petitioner was directed to complete certain formalities of deposit of security equivalent to four months' licence fee. On deposit of this amount, letter dated 31.8.2004 was issued informing the petitioner that possession of the said parking lots was given to the petitioner with effect from 1.9.2004 and the petitioner was requested to complete requisite formalities in terms of letter of offer.

(2.) It is the allegation of the petitioner that soon after taking possession of the parking lots, he found that the members of the New Delhi Traders Association had started parking their vehicles but refused to pay parking charges. He met the President of the said Association, who expressed his helplessness in the matter. Thereafter, vide letter dated 8.10.2004, the petitioner informed the respondent about this problem and stated that whereas he was paying exorbitant licence fee of Rs.3,07,000/- per month, because of non- payment of parking charges by the shopkeepers of the area he was suffering losses. This was followed by further representations dated 21.2.2005, 17.3.2005 and 4.4.2005 stating that around 60 cars belong to NDTA members are parked every day without payment of charges as a result of which, he was deprived of income of Rs.60,000/- per month and asked for necessary reduction in the licence fee. It is further alleged by the petitioner that on 12.3.2005 the Delhi Metro Rail Corporation also occupied some area from the parking site given to the petitioner for construction of subway and because of this reduced area, he suffered further in his income. In this petition some further details of the events that took place thereafter have been given and it is not necessary to go into the same. What is to be noticed is that as per the petitioner, instead of reducing the licence fee the respondent issued show-cause notice dated 18.5.2005 calling upon the petitioner to deposit the licence fee as well as interest on the delayed deposit failing which it was threatened that his contract would be cancelled. On receiving this show-cause notice, the petitioner moved petition under Section 9 of the Arbitration and Conciliation Act being OMP No.181/2005 in which this Court directed maintenance of status quo, subject to certain deposits whereafter, the petitioner wrote letter dated 29.6.2006 preferring certain claims and requesting the Chairman, NDMC to act as an arbitrator or appoint any person as arbitrator. Since the Chairman, NDMC, failed to appoint arbitrator, present petition is filed under Section 11 of the Act for appointment of an arbitrator. It may only be noticed at this stage that the petitioner operated the said parking site on contract basis till 31.12.2006, as vide letter dated 22.8.2006 period of the contract was extended from 1.9.2006 to 31.12.2006.

(3.) The respondent appeared on 26.9.2006 after notice of the petition was served and was given four weeks' time to file reply. Reply has not been filed. It is submitted by Mr. Pant, learned counsel for the respondent, that arbitrator has since been appointed, though he was candid in his admission that this appointment has been made after service of notice of this petition to the respondent. This appointment is not acceptable to the learned counsel for the petitioner, who submits that when the respondent did not appoint the arbitrator within 30 days of the notice dated 29.6.2006 and even till the filing of this petition, the respondent has lost its right to appoint an arbitrator and it is now the prerogative of the Court to appoint the arbitrator in view of the judgment of the Supreme Court in Datar Switchgears Ltd. Vs. Tata Finance Ltd.and another, 2000 (3) Arb.LR 447. Learned counsel for the respondent could not dispute this position in law. Accordingly, this petition is allowed. Ms. Sunita Harish, Advocate, 243, Lawyers' Chambers, Delhi High Court, is appointed as an arbitrator, who shall adjudicate upon the claims raised in this petition as well as counter claims of the NDMC, if any. She shall be paid lump fee of Rs.50,000/- apart from clerical expenses, which shall be shared equally by both the parties.