Mukul Mudgal, J.

CM No. 6198/2009

Exemption allowed subject to all just exceptions.

CM stands disposed of.

FAO(OS) No. 164/2009 and CM No. 6197/2009 (stay)

1. This appeal challenges the order dated 24th April, 2009 passed by the learned Single Judge in petition OMP No. 225/2009 under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the Act) filed by the respondent-applicant before the learned Single Judge. The dispute between the parties arose as the appellant/contractor was awarded construction work vide letter dated 25th October, 2004 by the respondent, Cooperative Group Housing Society, for constructing 115 dwelling units at the plot allotted to the respondent i.e. plot No.7, Sector-19B, Dwarka, Phase-II, New Delhi. An agreement was also subsequently entered between the parties on 20th December, 2004 containing in detail the terms and conditions as agreed between the parties. The contract was for a lump sum payment per square foot basis for a total consideration of 26,26,00,000/- to be completed within 30 months. The appellant on being awarded the work immediately mobilized its labour, material and machinery for the work. The appellant submitted that it completed the superstructure of the four blocks between 1st April, 2006 and 2nd June, 2006.

2. However, the architect of the respondent society sent a letter dated 13th February, 2009 wherein it was alleged that the appellant had abandoned the work. Without considering the reply sent by the appellant, the respondent reiterated the allegation vide its letter dated 4th March, 2009 and further vide its letter dated 13th March, 2009 was said to have terminated the contract. Thus, the appellant had earlier filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 being OMP No. 138/2009 praying for the appointment of an independent person who shall take measurements of the work already done by the respondent at the site i.e. Plot No. 7, Sector-19B, Dwarka, New Delhi-110075 and preserve the work executed by the appellant till the disputes were referred for arbitration and restraining the respondent from taking measurements and engaging another contractor which resulted in the order dated 20th March, 2009.

3. The learned Single Judge vide order dated 20th March, 2009 while declining the prayer for the appointment of an independent person to measure the work undertaken, permitted the appellant-applicant to depute its own competent architect/civil engineer for the measurement of the work done by the appellant. Both the parties were to sign the said measurement and dissent, if any, upon the measurements was to be noted.

4. The order dated 20th March, 2009 reads as under:

This application has been made under Section 9 of the Arbitration and Conciliation Act, 1996 with a prayer that this Court should pass an interim injunction restraining the respondent from taking measurements and engaging another contractor for execution of the balance work and should appoint a receiver/independent person/persons who shall take measurement of the work and preserve the work executed by the petitioner till the disputes are referred to arbitration.

In my view, none of the above prayers can be allowed by this Court. The petitioner had entered into a contract with the respondent to do the civil work of the respondent in respect of its project. Some disputes cropped up inter se parties and the contract has been terminated by the respondent. Since the contract has been rescinded, the work done by the petitioner so far has to be measured so that the petitioner can be paid for the work done. Stopping the respondent from measuring the work done would be rather against the interest of the petitioner. Any doubt about the measurement not being taken correctly can be set at rest if the petitioner deputes its own architect/engineer at the time of taking the measurement.

Counsel for the respondent is present and takes notice of this petition and submits that the responde