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MADAN CONSTRUCTION COMPANY VERSUS DELHI DEVELOPMENT AUTHORITY


Company & Directors' Information:- MADAN DEVELOPMENT PVT LTD [Strike Off] CIN = U45203WB1979PTC032311

Company & Directors' Information:- MADAN CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024763

    ORIGINAL MISCELLANEOUS PETITION NO.67 of 1990

    Decided On, 01 April 1992

    At, High Court of Delhi

    By, THE HONOURABLE MS. JUSTICE USHA MEHRA

    For the Appearing Parties: P. Devan, Y.K. Kapur, Advocates.



Judgment Text

USHA MEHRA, J.


(1) M/s Madan Construction company has assailed the reference made by the persona designate under clause-25 of the agreement thereby referring the claims of the Delhi Development Authority (hereinafter referred to as DDA). According to the petitioner, the, appointment of respondent no. 3,shri S. C. Gupta, as Arbitrator is illegal and bad in law because after the earlier Arbitrator made and published his award on the claims of the petitioner, the arbitration agreement came to an end. In order to understand the declaration sought for by the petitioner, the brief facts of the case are that the petitioner had entered into a contract with the DDA for providing of additional facilities to re-surfacing of the main road (dense carpeting). The said agreement contained an arbitration clause No. 25. Disputes arose between the petitioner with the respondent-DDA pursuance to which the petitioner sought for an arbitration on his claims. The Engineer Member DDA appointed Shri V. D. Tewari as the Arbitrator vide his letter dated 23rd March, 1983. The said Arbitrator made and published his award on 13th November,1989 awarding a sum of Rs. l6,500. 00 in favour of the petitioner. After the making and publishing of the said award by Shri V. D. Tewari, the executive engineer DDA sought for an arbitration on account of his claims. The Engineer Member DDA vide is letter dated 18th January, 1990, appointed Shri S. C. Gupta, respondent. no. 3 as Arbitrator to adjudicate upon the claims of the DDA. It is xx the reference on DDA's claims which the petitioner is challenging in this petition, on the ground that after Shri V. D. Tewari made and published his award, the agreement came to an end. Respondent had ample opportunity to raise their claims and the present reference is barred by provisions of Order 2 rule 2 CPC.


(2) THIS petition has been contested by the respondent, inter alia, on the grounds that the arbitration agreement never come to an end with the making and publishing of the award by Shri V. D. Tewari on 13th November, 1989, nor the respondents can be precluded from raising their claims before the Arbitrator pursuant to the arbitration agreement Even the provisions of Order 2 rule 2 Civil Procedure Code in the facts of this case are not applicable. The counter-claim by the office of the DDA was sent to the Engineer Member but the same was not referred by him till 8th February 1989. The claims raised by the respondent were not adjudicated upon by Sh. V. D. Tewari, the Arbitrator Moreover the objections on merits can be taken before the Arbitrator.


(3) I have heard Mr Y. K. Kapur, counsel for the petitioner and Mr. Pradeep Dewan, counsel for the respondent. In nut shell the whole case of the petitioner is based on the fact that the respondent DDA ought to have raised its claims when the First reference was made by the Engineer Member on 23rd March, 1989, Even the letter dated 23rd March,1989. issued by the Engineer Member show that the Engineer Member permitted the DDA to subirnt its claims, subject, however to their admissibility under clause-25 of the agreement and the DDA having not done that, is precluded at this stage from raising fresh claims. He, therefore, drew my attention to order 2 rule 2 which provides as under:-


"relinquishment of part of claim-where a plaintiff omits to sue in respect of ,or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. "


(4) TO strengthen his arguments he has placed reliance on the diction of the Supreme Court in the case of K. V. George, vs. The Secretary to Govt. Water and Power deptt. Trivandrun AIR 1990 S. C. 53 where the facts were that the contractor filed certain claims which had arisen after the termination of the contract. Certain claims he did not raise when his first claim petition was filed. For these claims he sought a second reference. The Supreme Court observed that for the same cause of action if the contractor did not raise all the claim in the petition, he was bared from doing so by a second reference. It was in this background Supreme Court applied the provisions of Order 2 rule 2. In the present case it is not the case of the parties that the petitioner has raised additional claims but it is that respondent DDA which has filed the claims. Therefore the provisions of Order 2 rule 2, to my mind, will not be applicable to the facts of this case. In the case of K. V. George (supra) the contract was terminated by the respondent and all the issues arose out of the termination of that contract, but the cotractor did not choose to file claims for all the disputes. Therefore he was subsequently precluded from raising fresh claims, particularly when no fresh cause of action arose. That is precisely what order 2 rule 2 provides. The reading of order 2 rule 2 shows that this provision has been inserted by the legislation in order to avoid multiplicity of proceedings for the same cause of action. The intention is that if a plaintiff has number of claims arising of same cause of action, he must raise them in are petition. He cannot be permitted to file number of petitions every time seeking part of the relief has number of claims arising of same cause of action, he must raise them in one petition. He cannot be permitted to file number of petitions every time seeking part of the relief arising out of same cause if petitioner had asked for second reference provisions of order 2 rule 2 would have applied but not to D. D. A. The respondent or for ' that matter the defendant has a choice either to raise the claim or counter claim when he files the written statement or he can file a separate suit for his claims. Support can be had from the provision provided under Order 7 rule 6a where the right has been given to the defendant to set up a counter-claim against the claim of the plaintiff in respect of the cause of action accruing to the defendant against the plaintiff and it is also provided that such counter-claim shall have the same effect as a cross-suit and the said counter-claim is to be treated as a plaint. But nowhere it is providing that if such a defendant fails to make a counter-claims against the claim of the plaintiff, he would be deprived of filing a fresh suit for the same cause of action which had accrued in his favour. Applying the principles , of law as laid down under order 7 rule 6a, I am of the view that the defendant cannot be debarred from raising the counter-claim which is a misnomer for its claims. Therefore the decision of the Supreme Court is distinguishable in the facts of this case. It ' is not the case of the petitioner that the counter-claim of the respondent had in fact been adjudicated upon before the Arbitrator. I also find no merit in the contention of the counsel ' for the petitioner that the DDA had oppo

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rtunity to refer its counter-claim before the ' Arbitrator and having not done so, DDA is debarred from doing so. There is no provision under the law by which the respondent can be deprived from raising the claim subsequently. Nor the arbitration agreement came to an end after Shri V. D. Tewari made and published his award with regard to the claim of the petitioner. Before parting I may make a mention that Mr. Y. K. Kapur had pointed out that the claim of the respondent are barred by limitation and that these have already been adjudicated upon by the f Arbitrator. These objections, the petitioner will be within his rights to raise before the '"i Arbitrator. (5) IN view of these observations. I find no merit in this petition. The same is dismissed.
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