RANA CASE: APPOINTMENT OF ARBITRATOR

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: ARBITRATION AND CONCILIATION ACT


ARB. PET.No.22/2004


Date of Decision : 11th August, 2004



SHRI A.S. RANA, PROPRIETOR,
M/S RANA CONSTRUCTION CO.


Through


Mr. B.K. Dewan, Advocate ...Petitioner


versus


DIN COOP GROUP HOUSING SOCIETY LTD


Through


NEMO ...Respondent


MUKUL MUDGAL, J.(ORAL)

1. This is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an independent arbitrator.

2. The parties entered into a Contract dated 25th February, 1996 for construction of 166 Dwelling Units at Plot No.7, Sector 4, Phase 1, Dwarka, New Delhi-110075. The petitioner is the contractor of M/s Rana Construction Company. Clause 22 of the Agreement between the parties providing for settlement of disputes by way of arbitration reads as follows:-
"Clause 22. ARBITRATION:

(A) If any dispute arises and persists between the contractor and society the same shall be referred to the sole arbitrator to be appointed by the President, Din Coop. Group Housing Society Ltd., whose award shall be final and binding on both parties. The arbitrator shall submit his award within six months of his entering on the reference. This period may be extended by the arbitrator with the consent of both the parties.

(B) Only that Court within whose jurisdiction the administrative office of the society is located will have jurisdiction on any matter requiring reference to Court ."

3. There is no dispute about the existence of the agreement and the arbitration clause. The petitioner has sent a legal notice dated 9th December, 2002, as well as letter dated 24th November, 2003, requesting the respondent Society to appoint the arbitrator to adjudicate the disputes between the parties. However, no response has been received. Accordingly, the petitioner has approached this Court on 19th January, 2004 by filing this petition under Section 11(6) of the Act. On 23rd January, 2004, notice was issued to the respondent. On 8th April, Shri Sanjiv Gupta, Advocate has entered appearance on behalf of the respondent Society and sought time to file reply. On 9th August, 2004, the matter was again adjourned on the respondent counsel's request. However, no reply is filed upto date.

4. Learned counsel for the petitioner has relied upon a judgment of the learned Single Judge of this Court in A.A.No.235/2003 entitled as "M/s Associated Builders Vs Delhi Development Authority & Others", delivered on 17th December, 2003 to contend that this case warrants appointment of an independent arbitrator in view of the recalcitrant attitude of the respondent. The relevant portion of the aforesaid judgment reads as follows:-
"Mr. K.K. Bhhuchar who appears on behalf of the respondent-DDA persuasively seeks adjournment by saying that he has just been appointed and is awaiting instructions by the Department. Normally, I may have been persuaded to grant such a request, but in this case, where the petitioner has been kept at bay since 1997, no further indulgence should be shown. Petitioner had to file a petition for appointment of an arbitrator and thereafter two arbitrators have relinquished their charge. In my view this case warrants appointment of an independent arbitrator following the judgment in Datar Switchgears Ltd. Vs TATA Finance Ltd. & Anr. (2000) 8 SCC 151."

5. Accordingly, following the above position of law, the petition is allowed and Shri V.D. Tewari, IES, Chief Engineer, CPWD (Retd.) is appointed as an Arbitrator to adjudicate upon the disputes between the parties sought to be raised in this petition. Arbitrator to fix his fees in consultation with the parties. Parties to appear before the Arbitrator on 2nd September, 2004. Arbitrator to give his award within 6 months from the date of entering upon reference.

6. This petition stands allowed and disposed of accordingly in the above terms.

August 11, 2004 (MUKUL MUDGAL)
Judge