M L MAHAJAN Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The present petition is filed under Section - 14 of the Arbitration Act, 1940 for issuance of direction to the arbitrator, respondent No. 2 herein, to file the award alongwith the proceedings in this Court and on filing of the same the parties may be informed to take appropriate steps in accordance with law.

(2.) Notice of the petition was issued. The award and the proceedings have been filed by the arbitrator and the petitioner as well as the respondent, Delhi Development Authority, have filed their respective objections.

(3.) The petitioner had entered into an agreement with respondent No. 1 for the construction of 84 MIG houses at Bodella (Vikaspuri) Pocket-GG-III including internal development (balance work). The agreement entered into between the parties contained an arbitration clause for reference of disputes to the arbitrator in the manner, as provided in the same. Clause 25 of the Agreement reads as follows: "CLAUSE 25. Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs drawings and instruction herein before mentioned and as to the quality on workmanship or materials used on the work or as to any other questions claim, right matter or thing whatsoever, in any way arising out of or relating to the contract designs drawings, specifications, estimates, instruction, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Engineer Member Delhi Development Authority at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is a Delhi Development Authority employee that he had to deal with the matters to which the contract relates and that in the course of his duties as Delhi Development Authority employees he had express view on all or any of the matters in dispute of difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Engineer Member Delhi Development Authority as aforesaid at the time of such transfer, vacation of office or inability to act small appoint another person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor it is also a term of this contract that no person other than a person appointed by such Engineer Member, Delhi Development Authority as aforesaid should act as arbitrator and, if for any reason that is not possible, the matter is not to be referred to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 50,000.00 (Rupees Fifty thousand) and above, the arbitrator will give reason for the award. Subject as aforesaid the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration, proceeding under this Clause. It is a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such dispute. It is also a term of the contract that if the contractor(s) does/do not make any demand for arbitration in respect of any claim (s) in writing within 90 days of receiving the intimation from the Engineer-in-charge that the bill is ready for payment, the claim (s) of the contractor (s) will be deemed to have been waived and absolutely barred and the Delhi Development Authority shall be discharged and released of all liabilities under the contract in respect of those claims." The disputes having arisen between the parties, the petitioner invoked the arbitration clause vide communication dated January 19, 1991 and vide letter dated April 11, 1991 Engineer Member of the respondent appointed Shri M.S.Bhatia as the sole arbitrator. The said arbitrator, however, resigned vide his letter dated April 22, 1991. Thereafter one Shri S.C.Kaushal was appointed as arbitrator who also resigned vide his communication dated November 4, 1993. Respondent No. 2 was appointed as sole arbitrator by the Engineer Member as successor to the previous arbitrators, who resigned and he entered upon the reference on June 17, 1994.