K C SHARMA Vs. DPA

JUDGEMENT

(1.) In this petition filed under Section 20 of the Arbitration Act, 1940, it is alleged that the respondents invited tenders for the work of Construction of SFS Houses at Sarita Vihar, Pkt. DandE SH : Construction of Temp. Office Building Near Circle Office, Sarita Vihar. In response to the invitation petitioner submitted the tender which was accepted by letter No. 59(134)90/SED-3/DDA/1837 dated October 8, 1990 of the Executive Engineer SED-3, DDA, New Delhi. Agreement bearing No. 19/EE/SED-3/DDA/90-91 containing arbitration clause was executed between the parties. Date of start of the work was October 18, 1990 while date of completion was April 16, 1991. It is stated that the respondents failed to perform their part of the obligation under the aforesaid agreement. The site was handed over in piece meal. Decision with regard to extra items/additional works was delayed. Drawings and designs were supplied belatedly. Respondents were to provide bricks for execution of the work which they failed to provide. Petitioner had to arrange for the bricks himself. Work remained stopped at DPC level for want of earth filling work. Cement in sufficient quantity was not supplied in time. Despite delays/failure on the part of the respondents, the work was completed by July 13, 1991, by the petitioner to the satisfaction of the respondents. By the letter, dated August 14, 1991, petitioner requested the respondents to prepare the final bill and to make payment therof. Amount of the final bill was paid by the respondents in August 1992. Final bill did not include all the claims of the petitioner. Petitioner invoking the arbitration clause by a letter dated May 18, 1995 requested respondent No. 2 to appoint an arbitrator within a period of 15 days from the receipt of the letter and to refer the claims to him. By the letter dated June 29, 1995, respondents asked the petitioner to apply for arbitration on prescribed pro forma enclosed therewith which the petitioner did and sent the pro forma back along with the letter dated July 7, 1995. Respondent No. 2 has, however, not appointed the arbitrator till date. Details of the claims, adjudication whereof is sought, are noted in para 9 of the petition. It is prayed that the respondents be directed to file the arbitration agreement and an independent arbitrator be appointed to adjudicate upon the claims of the petitioner.

(2.) DDA, respondent No. 1, has contested the petition by filing written statement. It is not disputed that the work was awarded to the petitioner and the date of start of the work was October 17, 1990 while that of completion of work was April 16, 1991, as alleged. It is stated that site was made available to the petitioner from time to time and information with respect to decision of extra work/additional work was given well in time. Petitioner was permitted to bring the bricks on January 22, 1991. Running payments were made on the basis of the work executed by the petitioner. It is further alleged that by the letter dated June 4, 1992 petitioner was asked to submit the final bill but he failed to submit the same. Eventually final bill was prepared by the respondents and paid to the petitioner. Nothing is payable to the petitioner. It is not denied that the petitioner requested respondent No.2 for appointment of an arbitrator on May 18, 1995, as alleged. However, this request was made by him after the expiry of the limitation period. Liability to pay the claims made by the petitioner is emphatically denied.

(3.) Submission advanced by Shri Alakh Kumar appearing for the respondents was that under clause 25 of the agreement entered into between the parties if a contractor does not make demand for arbitration in respect of the claim in writing within 90 days of his receiving intimation from the Engineer-in-Charge that the bill is ready for payment, the claim of the contractor will be deemed to have been barred by time. According to him, final bill was prepared and paid by the respondents in August 1992 while request for referring the alleged claims for arbitration was made by the petitioner to respondent No. 2 by the letter dated May 18, 1995 which request was much beyond the period of six months and the claims were, therefore, barred by time. Submission has, however no force. In Jai Chand Bhasin v. Union of India, AIR 1983 Delhi 508, similar point came to be considered by a Division Bench of this Court and it was held that the question of limitation falls within the province of the arbitrator and not the Court.