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2002 DIGILAW 66 (JK)

Gh. Ahmed Bagh v. Project Officer

2002-03-15

SYED BASHIR-UD-DIN

body2002
The applicant through counsel has moved this petition for reference to and appointment of Arbitrator in the dispute linterse the parties regarding the claimed amounts/damages allegedly suffered by the applicant/Contractor on account of acts of omission and commission of respondents regarding the allotted works of construction of Barbed Wire fencing around S.M.Form Padm Zanskar and Animal Sheep Form Padm Zanskar. The allotment of works to petitioner with agreement Annexure-P/A is on record. Clause 20 of the terms and conditions governing the contract reads as under :-- "20. The Chief Engineers decision will be final, in case of any dispute between the contractor and Divisional Officer and be binding upon the contractor." On notice, respondents have appeared and filed their defence to the application. The cause is defended mainly on the around that the application is moved under the old Arbitration Act and not under present Jammu and Kashmir Arbitration and Conciliation Act, 1997 and therefore, the petition is not maintainable. Besides the defence taken counters on disputed questions of fact. The allotment of work as evidenced by Annexure-P/A is not denied. There is no reply to the above quoted clause 20, contained in the agreement. Heard. The petition on its face shows that it is moved under the provisions of Jammu and Kashmir Arbitration and Conciliation Act, 1997 and the scheme for appointment of arbitrators made by the Chief Justice of the Jammu and Kashmir High Court (Notification No. 3 dated 6-4-1999). The application is supported by copy of the documents certified by the counsel and also supported by the affidavit. The contention that the matter is not maintainable for being moved under the (old) Arbitration Act Samvat 2002, is not true, so accordingly not merited. Admittedly, the documents on record Annexure - P/A, shows that an Arbitration Agreement has come ino being between the parties for submission to Arbitration the dispute(s) which has (have ) arisen or may arise between the parties in respect of the allotted work in question, Clause -20 in the prescribed PWD Form of Contract of reference of dispute to Arbitrator is part of the Arbitration Agreement in writing within the meaning of Section 7 of the J&K Arbitration and Conciliation Act, 1997. Even Communications and Committees report dated 18-05-1990 (Annexure- P1, P2 and P3) all go to show that the parties have a running dispute regarding the works in question. Even Communications and Committees report dated 18-05-1990 (Annexure- P1, P2 and P3) all go to show that the parties have a running dispute regarding the works in question. Petitioners attempt to get the Arbitrator appointed for settlement of claim/dispute in question has not succeeded. The contention touching the details of the agreement, difficulties in execution of work and the reasons for the respondents to withdraw from the agreed position and failure to carry forward the agreement are all matters which squarely concern the dispute rather than touch the jurisdiction of the Arbitrator to decide the matter. Even in the memo of objections/defence on record, non-applicaants have even acknowledged that the State and its officials/respondents have made attempts and are still exploring the possibility of negotiating the matter with the petitioner. In the premise, the matter is referred to Arbitrator and in view of the agreement of the parties, in terms of clause 20 of the agreement as reiterated by the counsel for the parties before the court, Chief Engineer, Public Works Deptt. Srinagar is appointed as Arbitrator who shall enter upon the reference and make the Arbitral Award after following the due procedure. The Arbitral proceedings shall be completed with in a period of four months from the date the Arbitrator commences the proceedings. The proceedings and Arbitral record shall filed in court with award.