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1999 DIGILAW 613 (DEL)

DAULAT RAI AND SONS v. DELHI CANTONMENT BOARD

1999-08-13

MUKUL MUDGAL

body1999
MUKULMUDGAL,j. (ORAL) ( 1 ) THIS is an arbitration petition, on behalf of the petitioner, under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as the act ) seeking a direction to the respondents to file the original of Arbitration Agreement in this Court and also an Order of reference of the disputes/claims enumerated in Para 7 of the petition for arbitration. ( 2 ) THE petitioner is one of the partners of the firm/ms. Daulat Rai and Sons, having General Power of Attorney (Annexure-1 at Pages 10-13 of the paper-book) on behalf of the firm. . . . ( 3 ). The petitioner entered into contract on 10. 6. 1992 for provision of Central Sewerage Scheme in existing village Naraina, Delhi Cantt. . . ( 4 ) CLAUSE 70 of the contract Agreement provided for the arbitration and reads as follows: "70. Arbitration- All disputes, between the parties to the Contract (other than those for which the decision of the C. W. E. or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an engineer Officer to be appointed by. the authority mentioned in the tender documents. Unless both parties agree in writing such references shall not take place until after the completion of alleged completion of the Works Or termination or determination of the contract under Condition Nos. 55, 56 and 57 hereof. Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalised by the Govt. to get the works completed by or through any other Contractor or Contractors or Agency or Agencies. If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place. The Arbitrator shall be deemed to have entered on the reference on the date 136 he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence. The Arbitrator shall be deemed to have entered on the reference on the date 136 he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence. The Arbitrator may, from time to time with the consent of the parties, enlarge the time upto but not exceeding one year from the date of his entering on the reference, for making and publishing the award. The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute. The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sola discretion. The Award of the Arbitrator shall be final and binding on both parties to the contract. " ( 5 ) THERE were some disputes in relation to the amount of certain claims which arose from the contract agreement and on such completion of work, various requests were made by the petitioner and respondents failed to make payments and settle the final bill. Ultimately by a Reminder dated 20. 11. 1995, a document at Pages 31 of the paper-book (Part I II), the petitioner because of the arbitration clause which requires the appointing authority to appoint the arbitrator, gave notice that if the arbitrator is not appointed immediately then it will be presumed that the appointing authority has waived its right to appoint the arbitrator. ( 6 ) MR. Neeraj Malhotra, the learned counsel appearing on behalf of the respondents very fairly states that the authority cited by the learned counsel for the petitioner on 12. 7. 1999, i. e. , Union of India and Anr. Vs. M/s. L. K. Ahuja and Co. AIR 1988 SC 1172 would apply. According to the said judgment even if the final bill was settled and no claim declaration was given, the right to get further payment gets weakened but the claim subsists and whether it does subsist is a matter which is arbitrable. Vs. M/s. L. K. Ahuja and Co. AIR 1988 SC 1172 would apply. According to the said judgment even if the final bill was settled and no claim declaration was given, the right to get further payment gets weakened but the claim subsists and whether it does subsist is a matter which is arbitrable. ( 7 ) ACCORDINGLY, the petition is allowed and the respondents are hereby directed to file the original arbitration agreement in this Court within six weeks from today and refer all the disputes/claims mentioned in Para 7 of the petition for the consideration by a Sole Arbitration. Respondents are further directed to appoint an Arbitrator interms of the Arbitration Act within a period of four weeks from today. ( 8 ) IN view of the above, the petition stands disposed of.