BHARTIYA CONST. CO. Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE matter is taken up after remand back by the Division Bench for addressing the maintainability of the petition inter alia under Order 2 Rule 2 CPC, on limitation and cause of action. None has appeared for the respondent despite service of the Court notice.

(2.) THE present petition was filed under Section 20 of Arbitration Act for directions to DDA to appoint an Arbitrator. A contract for construction of 504 SFS category flats in Sukhdev Vihar was awarded by DDA to the petitioner in 1982. During the continuation of the contract a dispute arose between the parties and this dispute in terms of the arbitration agreement was referred for adjudication to the Arbitrator in 1983. The work under the contract continued irrespective of the dispute being adjudicated by the Arbitrator. The work got completed on 24th June, 1988. The award on the dispute arisen at the initial stage of the contract was rendered by the Arbitrator on 31.10.1988. This award was affirmed by the Court and was made a Rule of the Court on 8.8.97. The present petition has been filed by the petitioner seeking appointment of an Arbitrator after completion of the work because the final bill of the petitioner has not been prepared and paid, neither the security deposit made by the petitioner has been returned. The petitioner has also raised other disputes seeking escalation in price etc.

(3.) IT is settled law that only a living dispute can be referred for adjudication to the Arbitrator. There is no doubt that in the present case, the work was completed on 24.6.1988. After completion of work, the final bill of the petitioner was to be finalized by the respondent. It is not the case of the respondent that respondent had finalized the final bill. As late as on 24th October, 1994, the respondent had written to the petitioner that its challenge to the earlier award was pending before the High Court therefore respondent would not comment or discuss the merits of the claim raised by the petitioner. Respondent restricted its reply to the extent of renewal of bank guarantee and renewal of FDR (security provided by the petitioner to the respondent) for completion of work. In this letter, it is stated by the respondent that completion was recorded on 24.6.1988 and the counter claim of the department against the petitioner was rejected by the Arbitrator in award published on 31.10.1988. Since the respondent has challenged this rejection of counter claim by way of suit No. 2816/88, the respondent only wanted that petitioner should get the bank guarantee renewed without further delay and in case the bank guarantee was not renewed, the respondent would be forced to invoke it. The respondent made it clear to the petitioner that bank guarantee was required to be kept in force till the decision of the High Court.