ANIL KUMAR GOEL Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioner was awarded the contract for construction of CSC at SBI Society in G-17 Area, Paschim Vihar, Delhi, by the respondent - Delhi Development Authority. The parties entered into an agreement for this purpose which contains an arbitration clause being Clause No. 25 reads as follows :

(2.) The petitioner relying upon the abovesaid clause seeks reference of the disputes enumerated in para 9 of the petition. The respondents have taken a plea that the disputes cannot be referred to arbitration on the ground that the same were not made within ninety days of the receiving of the intimation from the Engineer Incharge that the final Bill was ready for payment to the petitioner. The respondent in its reply to the petition referred to the fact that intimation with regard to the final bill being ready was given to the petitioner on July 13, 1994 and claim numbers I, 2,3,8 and 9 were lodged by the petitioner on December 3,1994, i.e., after the expiry of ninety days from the date of intimation regarding the preparation of the final bill. The petitioner in the rejoinder has denied the receipt of the intimation from the respondent regarding the preparation of the final bill. Therefore the question as to whether the petitioner had received the above said intimation on July 13, 1994 be comes a disputed question of fact. Besidesa perusal of Clause25 of the agreement shows that it does not affect the contractor's right to enforce arbitration in respect of its claims preferred beyond the period of ninety days for the date of receipt of the intimation regarding die preparation of die final bill. The clause does not appeal of the remedy of arbitration being barred in the event of contractor's failure to lodge the claims of the contractor will be deemed to have been waived and absolutely barred resulting in DDA being discharged and relieved of liabilities under the contract in respect of these claims. This time barring provision applies to the claims and does not bar their reference to arbitration. It is another matter that the Arbitrator taking cognizance of the provisions rejects them on the ground of their being time barred. in a case of an arbitration clause which contains twin time barring provision - one barring the claim itself and the other barring the Arbitrators, calls for rejection of the demand for arbitration made after expiry of the period of time fixed for leaking the demand.

(3.) In the instant case. Clause 25 contains only, the first type of time barring provision. Since the clause does not provide the second type of time barring provision, the bar of the Arbitrator to adjudicate upon disputes would not be extinguished. In this view I am supported by the decisions of this Court in Gas Authority of India Ltd. v. SPIE CAPAG, S.S. & Others, 1993 (4) Delhi Lawyer 192; Jai Chand Bhasin v. Union of India and Another, AIR 1983 Delhi 507; and Ved Prakash Mithal v. The Union of India, AIR 1984 Delhi 325.