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1997 DIGILAW 66 (DEL)

ANIL KUMAR GOEL v. DELHI DEVELOPMENT AUTHORITY

1997-01-13

A.D.SINGH

body1997
Anil Dev Singh,j. ( 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 : "except where otherwise provided in the contract all questions and disputes relating to the meaning of specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship of materials used on the work or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of or relating to the contract design drawings, specifications, estimates, instruction, orders or their conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be REFERRED TO to the sole arbitration of a person appointed by the Chief Engineer, Delhi Development Authority at the time of dispute. It will be no objection to any such appointment that the Arbitrator so appointed is a Delhi Development Authority employee that he had to deal with the matters to which the contract relates and that in the course of his duties as Delhi Development Authority employee he had expressed view on all or any of the matters in dispute or difference. The Arbitrator to whom the matter is originally REFERRED TO being transferred or vacating his office or being unable to act for any reason, such Chief Engineer, Delhi Development Authority, as aforesaid at the time of such transfer, vacation of office or liability to act shall appoint another person to act as Arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor it is also a term of this contract that no person other than a person appointed by such Engineer Member, Delhi Development Authority was aforesaid should act as Arbitrator and, if for any reason that is not possible, the matter is not be REFERRED TO to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 50,000. 00 (Rupees fifty thousand) and above, the Arbitrator will give reason for the award. In all cases where the amount of the claim in dispute is Rs. 50,000. 00 (Rupees fifty thousand) and above, the Arbitrator will give reason for the award. Subject as aforesaid the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause, it is a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be REFERRED TO to arbitration under this clause together with the amount or amounts claimed in respect of each such dispute. It is also a term of the contract that if the contractors) does/do not make any demand for arbitration in respect of any claim (s) in writing within 90 days of receiving the intimation from the Engineer-in-Charge that the Bill is ready for payment, the claim (s) of the contractors) will be deemed to have waived and absolutely barred and the Delhi Development Authority shall be discharged and released of all liabilities under the contract in respect of those claims". ( 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 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 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. 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 TO 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. and 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. ( 4 ) LEARNED Counsel for the respondent relied upon Clauses 7 and 8a of the agreement and contended that under these clauses the claims of the petitioner would be barred as the same were not submitted in accordance therewith. I have perused Clauses 7 and 8a and I find that these clauses do not bar. ( 4 ) LEARNED Counsel for the respondent relied upon Clauses 7 and 8a of the agreement and contended that under these clauses the claims of the petitioner would be barred as the same were not submitted in accordance therewith. I have perused Clauses 7 and 8a and I find that these clauses do not bar. the jurisdiction of the Arbitrator to adjudicate upon the disputes even when the petitioner did not raise its claims in accordance with the abovesaid clauses, it will be for the Arbitrator to consider as to whether the petitioner had lodged its claims within ninety days from the receipt of the intimation regarding the final Bill or not. It will also for the Arbitrator to consider whether the petitioner had raised its claims in accordance with Clauses 7, 8a and 25. In case he finds that the claims had been raised in accordance with the abovesaid clauses he would naturally reject the claims of the petitioner but that falls within his jurisdiction and province. ( 5 ) ACCORDINGLY, the respondent-DDA is directed to appoint an Arbitrator in accordance with Clause 25 of the agreement within four weeks. The petition stands disposed of.