Delhi High Court - Orders
M/S R.K. Goel Abhey Kumar Jain vs Delhi Development Authority on 13 September, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 871/2023
M/S R.K. GOEL ABHEY KUMAR JAIN ..... Petitioner
Through: Mr. Avinash Kr. Trivedi and Mr.
Anurag Kaushik, Advs.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. ShobhanaTakiar, SC along with
Mr. Arya Suresh Nair and Mr. Kuljeet
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 13.09.2023
1. The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeks appointment of a Sole Arbitrator to adjudicate the disputes between the parties.
2. The disputes between the parties have arisen in the context of an „Agreement bearing no. 23/EE/FOD-1/DDA/2018-19 dated 22.01.2019, executed between the petitioner and the respondent.
3. The arbitration clause is contained as clause 25 of General Conditions Contract of the said agreement. The same is reproduced and reads as under:
"CLAUSE 25 Settlement of Disputes & Arbitration Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or 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, designs, drawings, specifications, estimates, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:09:08 instructions, orders or these 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 cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:
i)If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge or if the Engineer in Charge considers any act or decision of the contractor on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable and is disputed, such party shall promptly within 15 days of the arising of the disputes request the EM or where there is no who shall refer the disputes to Dispute Redressal Committee (DRC) within 15 days along with a list of disputes with amounts claimed if any in respect of each such dispute. The Dispute Redressal Committee (DRC) shall give the opposing party two weeks for a written response, and, give its decision within a period of 60 days extendable by 30 days by consent of both the parties from the receipt of reference from EM. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule 'F'. Provided that no party shall be represented before the Dispute Redressal Committee by an advocate/legal counsel etc. If the Dispute Redressal Committee (DRC) fails to give its decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC) or expiry of time limit given above, then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the EM/DDA, in charge of the work or for appointment of arbitrator on prescribed proforma as per Appendix XV under intimation to the other party.
The EM/DDA shall in such case appoint the sole arbitrator or one of the three arbitrators as the case may be within 30 days of receipt of such a request and refer such disputes to arbitration. Wherever the Arbitral Tribunal consists of three Arbitrators, the contractor shall appoint one arbitrator within 30 days of making request for. arbitration or of receipt of request by Engineer-in-charge to EM/DDA for appointment of arbitrator, as the case may be, and two appointed arbitrators shall appoint the third arbitrator who shall act as the Presiding Arbitrator. In the event of a. A party fails to appoint the second Arbitrator, or b. The two appointed Arbitrators fail to appoint the Presiding This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:09:08 Arbitrator, then EM shall appoint the second or Presiding Arbitrator as the case may be.
ii) Disputes or difference shall be referred for adjudication through arbitration by a Tribunal having sole arbitrator where Tendered amount is Rs. 100 Crore or less. Where Tendered Value is more than Rs. 100 Crore, Tribunal shall consist of three Arbitrators as above. The requirements of the Arbitration and Conciliation Act, 1996 (26 of 1996) and any further statutory modifications or re-enactment thereof and the rules made there under and for the time being in force shall be applicable. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed, if any, in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the decision of the DRC. It is also a term of this contract that any member of the Arbitration Tribunal shall be a Graduate Engineer with experience in handling public works engineering contracts at a level not lower than Chief Engineer (Joint Secretary level of Government of India). This shall be treated as a mandatory qualification to be appointed as arbitrator. Parties, before or at the time of appointment of Arbitral Tribunal may agree in writing for fast track arbitration as per the Arbitration and Conciliation Act, 1996 (26 of 1996) as amended in 2015. Subject to provision in the Arbitration and Conciliation Act, 1996 (26 of 1996) as amended in 2015 whereby the counter claims if any can be directly filed before the arbitrator without any requirement of reference by the appointing authority, the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs. 1,00,000/-, the arbitrator shall give reasons for the award. It is also a term of the contract that if any fees are payable to the arbitrator, these shall be paid as per the Act.
The place of arbitration shall be as mentioned in Schedule F. In case there is no mention of place of arbitration, the arbitral tribunal shall determine the place of arbitration.
The venue of the arbitration shall be such place as may be fixed by the Arbitral Tribunal in consultation with both the parties. Failing any such agreement, then the Arbitral Tribunal shall decide the venue. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues the notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration in Delhi shall be such This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:09:08 place as may be fixed by the arbitrator in his sole discretion. The cost of the reference and of the award shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid. The fees, if any, of the arbitrator, shall, if required, to be paid before the award is made and published, be paid half and half by each of the parties and shall be as under:
SUM IN DISPUTE MODEL
FEE
Up to Rs.5.0 lacs Rs.45,000/-
Above Rs.5 Lacs & up to Rs.20 lacs Rs.45,000/- plus 3.5% of the claim
amount
over & above Rs.5.0 lacs
Above Rs.20 lacs & up to Rs.1 crore Rs.97,500/- plus 3% of the claim
amount
over & above Rs.1 Crore
Above Rs.1 crore & up to Rs.10 crore Rs.3,37,000/- plus 1% of the claim
amount
over and above Rs.1 Crore
Above Rs.10 crore & up to Rs.20 crore Rs.12,37,000/- plus 0.75% of the
claim
amount over and above Rs.10 crore
Above Rs.20 crore Rs.19,87,000/- plus 0.50% of the
claim
Amount above Rs.20 crores with
ceiling of Rs.30 lacs
(A)The Decision of the Superintending Engineer regarding the quantum of reduction as well as justification thereof in respect of rates for substandard work which may be decided to be accepted will be final and could not be open to Arbitration.
(B)Where the arbitral award is for the payment of money no interest shall be payable on whole or any part of the money for any period till the date on which the award is made."
4. Pursuant to disputes having arisen between the parties, an invocation notice dated 22.05.2023 was sent by the petitioner to the respondent. However, no response thereto was given by the respondent.
5. Since the existence of the arbitration agreement is not in dispute, there This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:09:08 is no impediment in the appointment of an independent sole arbitrator to adjudicate the disputes between the parties. Further, in view of the judgement of the Supreme Court in Perkins Eastman Architects DPC vs. HSCC (India) Ltd.1, an independent Sole Arbitrator is to be appointed to adjudicate the claims of the parties.
6. Accordingly, Mr. Kaushal Jeet Kait, Advocate (Mobile No. 9013908391) is appointed as the sole arbitrator to adjudicate the disputes between the parties.
7. It is agreed between the parties that the arbitration shall take place under the aegis of and under the rules of the Delhi International Arbitration Centre (DIAC).
8. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned Arbitrator on their merits, in accordance with law.
9. Needless to say, nothing in this order shall be construed as an expression of this court on the merits of the contentions of the parties.
10. The present petition stands disposed of in the above terms.
SEPTEMBER 13, 2023/as SACHIN DATTA, J
1
(2020) 20 SCC 760
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:09:08