TMI Blog2013 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrator could not decide those disputes which had to be decided by a third party and whose decision was final and binding on the parties - The Superintending Engineer has computed the amount payable by the plaintiff as compensation but in the opinion of this Court there is no clause in the contract which attaches any finality to the Superintending Engineer’s decision. The plaintiff is free to challenge the decision of the Superintending Engineer after invoking the arbitration clause. Accordingly, the present suit of the plaintiff’s as well as all the pending applications filed by the parties are referred to arbitration in terms of Arbitration Clause 9 of the agreement dated 3rd February, 2000 and the defendant is directed to appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the work or after the completion or abandonment thereof, shall be referred to the sole arbitrator of the Commissioner, Municipal Corporation of Delhi or any person nominated by the Commissioner on his behalf. The award of the arbitrator shall be final, conclusive and binding on all the parties in this contract. 3. Learned counsel for the defendant submits that the intention of the parties is clear that in case of dispute between the parties the matter shall be referred to arbitration. 4. On the other hand, learned counsel for the plaintiff states that defendant has waived its right to invoke the arbitration clause as plea of Section 8 of the Arbitration and Conciliation Act, 1996 was not taken in the writ proceedings filed by the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has drawn this Court s attention to Clause 6 of the agreement dated 3rd February, 2000 which reads as under: 6. In case the second party fails to adhere to the delivery schedule given by the first party, the first party reserves the right to purchase or procure the material without any notice at the risk, responsibility and cost of the second party. However, in case of late supplies, the first party reserves the right to impose penalty in accordance to 2 3 clauses of the conditions of the contract, in addition to terms No.5 above. 6. In support of her submission learned counsel for the plaintiff also relies upon the judgment of the Supreme Court in Vishwanath Sood vs. Union of India Anr. (1989) 1 SCC 657 wherein it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department. Our conclusion, therefore, is that the question of awarding compensation under clause 2 is outside the purview of the arbitrator and that the compensation, determined under clause 2 either by the Engineer-in-charge or on further reference by the Superintending Engineer will not be capable of being called in question before the arbitrator. 7. Having heard learned counsel for the parties this Court is of the view that the defendant Delhi Jal Board has not waived its right to seek arbitration. 8. It is settled law that a writ petition cannot be referred to arbitration and consequently non reference to an arbitration clause in the counter affidavit filed by the Delhi Jal Board does not result in waiver of the defendant s righ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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