TANTIA CONSTRUCTIONS LTD Vs. DDA

JUDGEMENT

(1.) THIS petition under Section 28 of the Arbitration Act, 1940 has been preferred by the petitioner for enlargement of time for making the award. It is submitted by the petitioner that the disputes between the petitioner and the respondent was referred for arbitration vide order of this Court on 19th february 1996 and this Court directed Engineer Members of DDA to appoint an arbitrator. The Engineers Members DDA vide its order dated 11th April 1996 appointed and Mr. Suresh Mehta, SC (Arbitration-I) DDA as the Arbitrator. Mr. Suresh Mehta entered into the reference vide his letter dated 12th April 1996. After Mr. Suresh Mehta, Mr. R. B. Malhotra took over the charge and continued the proceedings vide letter dated 10. 9. 1997 and directed the parties to appear before him on 22. 10. 1997. After Mr. R. B. Malhotra, Mr. N. K. Sharma took over the charge and continued with the arbitration proceedings. The parties to appear before him on 2. 7. 1998. The hearing dated 2. 7. 1998 was adjourned due to non appearance of the respondent and the Arbitrator fixed the next date of hearing as 4. 8. 1998, 6. 8. 98 and 17. 8. 98. However, no one appeared for the respondent and the matter was adjourned to 7. 9. 98. On 7. 9. 98, the Arbitrator adjourned the matter sine die due to non enlargement of time. It is stated that the petitioner had requested the Arbitrator that the matter was covered by the Arbitration and conciliation Act, 1996 and the enlargement of time was not required. Thereafter, mr. N. K. Sharma and Mr. S. S. Jain took over the charge of SC (Arbitration-I) and they restarted the proceedings and directed the parties vide letter dated 4. 7. 2006 to appear before him on 4. 8. 2006. The respondent vide letter dated 30. 12. 2006 requested the Arbitrator to decide the arbitration ex parte on the basis of CSF submitted by the respondent. However, the Arbitrator directed the parties to appear before him on 7. 3. 2007, giving one more opportunity to both parties and specifically stated that the matter shall be heard ex parte if parties failed to attend the matter. On 7. 3. 2007, the matter was adjourned at the request of respondent to 18. 4. 2007. Again the matter was adjourned to 8. 5. 2007 and then to 24. 5. 2007 due to non appearance of respondent. The respondent vide letter dated 5. 5. 2007, informed the arbitrator that the arbitrator has become functus officio since there was no extension of time by the Court. The Arbitrator during hearing dated 24. 5. 07 directed the petitioner to get the enlargement of time from the Court and hence this petition.

(2.) IN reply to the application, it is submitted by the respondent that on 7. 3. 98, Mr. N. K. Sharma, the Arbitrator, observed that in terms of Section 28 (2)of the Arbitration Act, 1940, the Arbitrator had become functuous officio and the proceedings got vitiated and he then adjourned the proceedings sine die. It is stated that no application was made by the petitioner for extension of time despite the specific observations of Mr. N. K. Sharma on 7th September 1998. Suddenly, out of blue, after about 8 years, on 4. 7. 2006, Mr. S. S. Jain restarted the arbitral proceedings without there being any authority conferred upon him as an Arbitrator in the matter or without there being any reference made to him. The proceedings so conducted by Mr. S. S. Jain were illegal per se since the arbitrator had become functuous officio in 1998 itself. The petitioner herein by a letter dated 8th March 2007 wrote to the engineer member DDA that appointment of the Arbitrator made on 11. 4. 96 was not under Clause 25 of the agreement and the petitioner sought fresh appointment of an Arbitrator. On one hand the petitioner made allegations that the arbitrator appointed was not in accordance with law and on the other hand, the petitioner made this application to extend the time of the Arbitrator thus the petitioner was blowing hot and cold. It is pleaded that the instant petition, moved by the petitioner was baseless and misconceived. It was bad because the arbitrator had become functuous officio. The petitioner could not approach the Court after 8 years.

(3.) A perusal of documents would show that on 7th September 1998, the arbitrator observed as under: