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2006 DIGILAW 444 (DEL)

GURSIMRAN SINGH CHADHA v. MCD

2006-03-06

MADAN B.LOKUR

body2006
( 1 ) THIS is a petition under Section 11 of the arbitration and Conciliation Act, 1996. ( 2 ) THE parties had entered into an agreement for the construction of a drainage system. According to the Petitioner some disputes had arisen with regard to the concrete mix as well as alignment of the drain and removal of certain electricity poles. It is submitted on behalf of the Petitioner that in spite of representations having been made to the respondents, no decision was taken on any of these issues by them with the result that the men and materials of the Petitioner were lying idle for a considerable period of time. ( 3 ) IN view of this position, the Petitioner addressed a letter dated 19th May, 2004 to the Commissioner, MCD pointing out that there are some disputes and differences between the parties and that these need to be referred to arbitration. The Petitioner invoked the arbitration Clause which is clause 25 of the agreement between the parties for the appointment of the Arbitrator. Since no action; was taken by the Commissioner, the present petition has been filed. ( 4 ) THE disputes between the parties have been mentioned by the Petitioner in paragraph 4 of the petition. ( 5 ) LEARNED counsel for the Respondents has contested the petition on the ground that in terms of Clause 25 of the agreement between the parties, a certain procedure should be followed, namely, the claimant has to first approach the Engineer In charge and get a decision from him, which is appeal able. It is submitted that this procedure was not followed and, therefore, the Petitioner cannot invoke the arbitration clause by passing the requirements of Clause 25. ( 6 ) HAVING heard learned counsel for the parties I am of the View that the disputes raised by the Petitioner do not fall within the scope of Clause 25 (i) of the agreement, which states that if the contractor considers any work demanded of him to be outside the requirements of the contract then he should make a representation and ask for decision from the Engineer In charge. The disputes that have been raised by the Petitioner pertains to the actual working of the contract and, therefore, do not fall under Clause 25 (i ). The disputes that have been raised by the Petitioner pertains to the actual working of the contract and, therefore, do not fall under Clause 25 (i ). What is applicable is clause 25 (ii) which deals with any other issues not covered by Clause 25 (i ). Consequently, the Petitioner was not required to make a representation to the concerned Engineer In charge and get a decision from him. The Petitioner rightly invoked Clause 25 (ii) of the agreement by making a reference to the Commissioner, MCD. ( 7 ) SINCE the Commissioner, MCD has failed to exercise the jurisdiction vested in him, it would have been permissible for me to appoint an Arbitrator. However, learned counsel for the Petitioner submits that there is no objection if one of the arbitrators from the panel of Arbitrators maintained by the MCD is appointed. She has suggested two names, that is, Mr. S. P. Rai, who is a retired IAS officer and Mr. C. M. Vij, who is a retired engineer in Chief of the MCD. ( 8 ) UNDER the circumstances, the commissioner should appoint any of the above persons as an Arbitrator, since both the of them are from the panel of Arbitrators maintained by the MCD. ( 9 ) IN case the Arbitrator feels that the claims of the Petitioner are outside the terms of the contract and fall within the purview, of Clause 25 (i) of the agreement he will free to reject the claim of the Petitioner in this regard. The commissioner will appoint the Arbitrator within a period of 30 days from" today. The petition is disposed of. Dasti. .