O.M.P. Nos.215/2014 & 297/2014

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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O.M.P. 215/2014

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Date of Decision: 23^rd December, 2015

SHIV KUMAR WASAL & CO

..... Petitioner

Through:

Mr. Sanjay Goswami, Adv.

versus

DELHI DEVELOPMENT AUTHORITY

..... Respondent

Through:

Mr. Shashank Garg, Mr.Zaid

Ali, Advs.

With

O.M.P. 297/2014

DELHI DEVELOPMENT AUTHORITY

..... Petitioner

Through:

Mr. Shashank Garg, Mr.Zaid

Ali, Advs.

versus

SHIV KUMAR WASAL & CO

..... Respondent

Through:

Mr. Sanjay Goswami, Adv.

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.

The award dated 07^th November, 2013 passed by the learned

arbitrator is under challenge by both the parties.

2.

Delhi Development Authority, hereinafter referred to as “DDA”

awarded a contract for construction of 672 MIG flats at Narela to M/s

Shiv Kumar Wassal & Company, hereinafter referred as to

“Contractor” on 21^st August, 1990. The Contractor completed the

work on 22^nd October, 1993 and submitted the final bill which was

paid by Delhi Development Authority on 21^st August, 1998.

3.

On 03^rd November, 1998, the Contractor raised twenty two

2015:DHC:10508

O.M.P. Nos.215/2014 & 297/2014

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claims on DDA. On 16^th November, 1998, the Contractor invoked the

arbitration clause for appointment of an arbitrator under clause 25 of

the agreement for reference of twenty two claims for adjudication.

4.

On 05^th April, 2000, DDA referred only nine claims to the

arbitrator. However, the competent authority of the DDA did not

refer the other claims on the ground that they were not covered in the

scope of the agreement.

5.

The Contractor filed an application before the arbitrator under

Section 23(3) of the Arbitration and Conciliation Act, 1996 for raising

additional thirteen claims. However, vide order dated 11^th August,

2005, the arbitrator permitted the Contractor to raise nine claims in

addition to the earlier nine claims.

6.

In the meantime, there was change of the arbitrator. The new

arbitrator took the view that he would adjudicate only the nine claims

referred to him by the competent authority. The Contractor filed a

petition under Section 11(6) of the Arbitration and Conciliation Act

which was allowed and the remaining thirteen claims were referred by

this Court to arbitration. In the meantime, the learned arbitrator passed

an award dated 03^rd October, 2006 with respect to the original nine

claims.

7.

The Contractor has challenged the award of the learned

arbitrator in O.M.P.266/2007 for non-consideration of the left out nine

claims whereas DDA challenged the award in O.M.P.76/2007 with

respect to the nine claims allowed by the learned arbitrator.

8.

On 19^th November, 2012, both O.M.P. Nos. 266/2007 and

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O.M.P. Nos.215/2014 & 297/2014

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76/2007 were disposed of by this Court. The objections of DDA were

dismissed except concessional modification of the award in respect of

one of the claims. However, this Court allowed O.M.P.266/2007 by

directing DDA to appoint an arbitrator to decide the nine left out

claims of the Contractor.

9.

Vide award dated 07^th November, 2013, the new arbitrator

allowed four claims of the Contractor. Both the parties have

challenged the said award. The Contractor has challenged the award

on the limited ground that learned arbitrator has not awarded pre-suit

and pendente lite interest in respect of the nine claims under the first

award whereas DDA has challenged the four claims allowed by the

arbitrator.

10.

Claim No.1/5:

Item 3.3(ii) of the agreement provides for RCC works in the

staircase from second floor to third floor level. The design was later

altered by DDA and staircase of second and third floor level was

cancelled as a result of which the claimant had to use extra manpower

and scaffolding for doing the work on the roof. The Contractor

demanded Rs.1,69,000/- against which the arbitrator awarded

Rs.46,2