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Avtar Singh Chadha Vs. Municipal Corporation of Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtDelhi High Court
Decided On
Case NumberI.A. No. 9454/98 in A.A. No. 176/97
Judge
Reported in1999IIAD(Delhi)351; 78(1999)DLT409; 1999(49)DRJ428
ActsArbitration and Conciliation Act, 1996 Sections 11
AppellantAvtar Singh Chadha
RespondentMunicipal Corporation of Delhi and anr.
Appellant Advocate Ms. A. Salwan, Adv
Respondent Advocate Mr. Raman Duggal, Adv.
Excerpt:
.....proportion to the time schedule. it was clearly mentioned that since the joint measurements had already been taken, thereforee, all what was necessary was to direct the mcd to scrutinise the bills already submitted and make the payment which is legitimately due and payable......learned counsel for the mcd has fairly submitted that within four weeks of submitting the final bill, the applicant's bill would be considered and scrutinized by the mcd and payment, if any, would also be made within four weeks. 2. in view of the statement of the learned counsel for the respondents, the application for the appointment of the arbitrator was disposed of. this court gave liberty to the applicant to revive the application in case the amount, if any, after adjustment is not paid to the applicant within four weeks. 3. the applicant has filed i.a. no. 9454/98 for the revival of this application. notice of this application was issued and reply to that application has also been filed. in the revival application, it is mentioned by the applicant that the respondent had delayed.....
Judgment:
ORDER

Dalveer Bhandari, J.

1. The applicant (Avtar Singh Chadha) has moved an application under section 11 of the Arbitration Act for the appointment of an arbitrator. This court issued a notice and a formal reply was filed on behalf of the respondentMCD. In the instant case, undisputed facts are that the work which was abandoned, was later on resumed by the applicant in June, 1997 and was finally concluded on 20.5.1998. Thereafter, the joint measurements were taken. To cut short any further delay, the learned counsel for the MCD has fairly submitted that within four weeks of submitting the final bill, the applicant's bill would be considered and scrutinized by the MCD and payment, if any, would also be made within four weeks.

2. In view of the statement of the learned counsel for the respondents, the application for the appointment of the arbitrator was disposed of. This court gave liberty to the applicant to revive the application in case the amount, if any, after adjustment is not paid to the applicant within four weeks.

3. The applicant has filed I.A. No. 9454/98 for the revival of this application. Notice of this application was issued and reply to that application has also been filed. In the revival application, it is mentioned by the applicant that the respondent had delayed the execution of the project by not making available the designs, drawings and materials required for execution of the project. In the meanwhile, rates for material and labour escalated and the applicant claimed higher rates. It is mentioned in the application that on 7.9.98, this court disposed of the arbitration application. Thereafter on 18.9.98, the applicant submitted a bill of Rs. 95,43,436/. It is mentioned in the application that the respondents, out of that amount brought a cheque of Rs.1,78,041/ only, and the balance amount is disputed. It is also mentioned that the respondents have been forcing the applicant to accept the same in full and final settlement towards the arbitration application. In this view of the matter, according to the applicant, an arbitrator ought to be appointed by the respondents, and since the respondents have failed to appoint the arbitrator, thereforee, this court may appoint the arbitrator.

4. It is mentioned that the percentage rate tenders amounting to Rs.70,65,659/ for the work of construction of a community hall at Janakpuri were invited. The work was awarded to M/s. Bharat Engineers & Consultants, 26.61 per cent below on estimated rate based on Delhi schedule rates 1993 as per the orders dated 5.4.1995. The work was to be completed in 18 months. According to the respondents, the applicant deliberately delayed the execution of the work. It is also mentioned that all relevant designs, drawings and clear site were given to the applicant contractor at the very commencement of this work. It is also mentioned that in spite of the fact that the required quantity of steel and cement in accordance with the site requirement were issued to the applicant well in time he did not maintain the progress in proportion to the time schedule. It is further mentioned that the applicant has delayed the execution of the said work deliberately and with a clear intention to create artificial disputes.

5. It is also mentioned that in the public interest, the respondents throughout rendered its cooperation to get the work completed in spite of the inordinate delay caused by the applicant. As such, the application founded upon false claims and misrepresentation of facts are not maintainable and are liable to be dismissed. It is mentioned in the reply that this revival application is motivated, mischievous and deplorable as the applicant created one issue or the other with deliberate intention to delay the execution of work and thereby made all efforts to create artificial disputes, inter alia, with a view and object to force the respondent to refer the matter to the arbitration on the basis of grounds of disputes which have been very methodically set up/fabricated in the Arbitration application. It is categorically mentioned in the reply that the entire contractual amount for the project, except Rs.1 lakh as quality control, Rs.1 lakh as security deposit, have been paid which the respondent is prepared to deposit forthwith according to rules. It is mentioned that the joint measurements have been conducted and the applicant contractor has taken the final measurements on 8.10.98 and accordingly, a sum of Rs.1.78 lakhs is payable to the contractor. The respondent has prepared a cheque of this amount and has been requesting the applicant to accept the same which has not been accepted by the applicant. Learned counsel for the respondent submitted that he has brought a cheque of this amount in court and can pay this amount to the applicant or his counsel. It is further alleged that the revival application is baseless, unsubstantiated and devoid of any merits.

6. In the reply, it is mentioned that after adjustment, liberty was granted to the applicant to revive the application only on one limited ground that in case the amount, if any due, is not paid within four weeks, then the applicant would be at liberty to revive the application and not otherwise. It is also mentioned that on 8.10.98, the petitioner accepted the final measurements of the said work but refused to accept the bill amount. In the reply, it is mentioned that the present application is false, bogus, dishonest and motivated and is liable to be dismissed with exemplary costs.

7. Mr. Raman Duggal, learned counsel for the MCD submitted that of late, it has come to MCD's notice that in very large number of cases, artificial disputes are created and thereafter serious endeavor are made to get the matters referred to the arbitrators with the ulterior motive to derive unjust and illegal benefits from the arbitrators. Along with the reply, two letters have been annexed, one dated 7.10.98, a letter which was sent by the Assistant Engineer II (Project), West zone to M/s. Bharat Engineers and Consultants in which it is mentioned that 'final bill of the said amount is lying in the office of the undersigned for the want of acceptance.' The applicant was requested to accept the measurement and bill within three days, otherwise it would be forwarded to the Accounts Branch for payment. Another letter dated 13.10.98 was also filed along with their reply. This letter was also addressed to Bharat Engineers and Consultants by the respondent. In this letter, it is mentioned that the respondents have accepted the final measurements of the said work but not the bill amount.

8. I have perused the application and reply. It may be pertinent to mention that this court granted liberty to the applicant to revive the application in case the amount, if any, after adjustment is not paid within four weeks. It was clearly mentioned that since the joint measurements had already been taken, thereforee, all what was necessary was to direct the MCD to scrutinise the bills already submitted and make the payment which is legitimately due and payable. But in the garb of this liberty, the applicant cannot be permitted to submit fresh bills after 7.9.98. Even according to the application, after the order of this court on 18.9.98, a bill of Rs. 96,43,346/ was submitted. After 7.9.1998, the applicant cannot be permitted to submit a fresh bill of Rs. 95,43,436/ and revive the application.

9. On consideration of all the relevant facts and circumstances, this revival application is devoid of any merit and accordingly rejected.


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