BUMBRAH ELECTRIC CO Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) CS(OS)2094A/1997 was filed by the petitioner/claimant u/s 14 of the Arbitration Act, 1940. However, the Arbitrator independently filed the award and which was registered as CS(OS) 2561A/1998 and objections were filed by the petitioner/claimant thereto. The Arbitrator has vide the award dated 18.9.1997 dismissed all the claims of the petitioner/claimant on the finding on the preliminary issue raised at the instance of the respondent, DDA. The preliminary objection raised by the respondent and as recorded in the award is:

(2.) The Arbitrator found that the date of the completion of work was 24.10.1991, the final measurement was recorded by the respondent on 1.11.1991 and the same was accepted by the petitioner/claimant on 20.5.1992 without any dispute and the final payment was made to the petitioner/claimant on 20.10.1992. The Arbitrator held that as per clause 25 of the agreement, the petitioner/claimant was to invoke the arbitration within three months from the date of the final payment on 20.10.1992 i.e., by 27.1.1993. Arbitrator further found that the petitioner/claimant had for the first time applied for arbitration vide letter dated 25.1.1993 delivered in the office of the Engineer Member of the respondent on 12.2.1993. It was held that the arbitration clause was thus invoked on 12.2.1993, beyond 90 days prescribed in clause 25 of the agreement. The Arbitrator further held that as per clause 25 of the agreement, the petitioner is deemed to have waived his claims against the respondent and the claim is barred and the respondent was held to have stood discharged in respect of all liabilities in respect of the claims.

(3.) The submissions of the counsel for the petitioner are two fold. Firstly, it is argued that the legal reasoning given by the Arbitrator is contrary to section 28 of the Indian Contract Act, 1972, which was amended w.e.f. 1.8.1997 i.e. prior to the pronouncement of the award. Secondly, it is contended that the Arbitrator has misconducted himself in ignoring a vital document, being letter dated 28.12.1992 of the petitioner invoking the arbitration and which was filed before the Arbitrator as Ex. C-47. It is contended that as per the said letter, even if the reasoning of the arbitrator with respect to clause 25 of the agreement is accepted, the petitioner has invoked the arbitration within the period of 90 days.