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2005 DIGILAW 187 (JHR)

Sutlej Construction Ltd. v. State Of Jharkhand

2005-03-02

M.Y.EQBAL

body2005
ORDER M.Y. Eqbal, J. 1. Reference may be made to the order dated 23.2.2005, which reads as under : "Reference may be made to the order dated 16.2.2005, which reads as under : "No counter-affidavit has been filed by the respondents in spite of time allowed to the respondents. Learned JC to Advocate General prays for more time for filing counter- affidavit. As prayed for, one weeks time is allowed for filing counter affidavit. Let this case be listed on 23.2.2005. If by that time, counter-affidavit is not filed then the Chief Engineer, Water Resources Department, Ranchi (respondent No. 2) shall appear in person before this Court." Today neither the counter affidavit has been filed nor the Chief Engineer, Water Resources Department, Ranchi appeared in person. Put up this case on 2nd March, 2005. On that day the Chief Engineer, Water Resources Department, Ranchi shall appear in person and file show- cause as to why a proceeding for contempt be not initiated against him for violating the order dated 16.2.2005. By the said time counter affidavit must be filed by the respondents." 2. It is only after the aforesaid order was passed, the Chief Engineer appeared in person and filed counter-affidavit. Perused the show-cause filed by the Chief Engineer. In the facts of the case, the show-cause is accepted with a direction to the Chief Engineer to be very careful in future. 3. Heard the learned counsel for the petitioner and J.C. to Advocate General. 4. In this Request Petition under Section 11(6) of the Arbitration and Conciliation Act, the petitioner prays for appointment of arbitrator in terms of the arbitration clause contained in Clause 23 of the agreement. 5. The petitioner was allotted work of construction of approach channel from 0.00 k.m. to 0.652 k.m. and from 0.652 to 0.762 k.m. Konar Irrigation Project in the District of Hazaribagh. Vide contract agreement No. 1F2 of 1989-90 executed by and between the petitioner and the Executive Engineer, the construction work was to be completed within three years. The petitioners case is that due to obstruction created by the Department the work could not be completed. Even payment for the work done has not been made. It is alleged that till date neither the petitioner was allowed to complete the work nor even final measurement has been taken nor the contract has been terminated. The petitioners case is that due to obstruction created by the Department the work could not be completed. Even payment for the work done has not been made. It is alleged that till date neither the petitioner was allowed to complete the work nor even final measurement has been taken nor the contract has been terminated. The petitioner sent several letters for resolving the dispute and lastly by notice dated 23.8.2002 invoked arbitration clause and requested for adjudication of dispute by the Superintending Engineer, who is the named arbitrator. When the petitioners notice was not responded, the instant Request Petition has been filed. In the counter-affidavit filed by the Chief Engineer, it is stated that the petitioner was not at all interested to complete the work although the sight was handed over to the petitioner in time. In the meantime, steps were taken for blacklisting the petitioner and ultimately the petitioner was blacklisted by the Department. It is further stated that the claims submitted by the petitioner is false and fabricated and therefore no dispute exist which requires adjudication. 6. Clause 23 of the contract is an arbitration clause, which reads as under : "In case any dispute or difference shall arise between the parties or either of thereupon any question relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned or as to the quality of workmanship or materials used on the work, or as be the construction of any of the conditions or any clause or thing therein contained, or as to any question, claim, rights or liabilities of the parties, or any clause or thing whatsoever in any way arising out of, or relating to the contract, designs drawing, specifications, estimates, instructions order, or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same whether arising during the progress of the work, or alter the completion or abandonment thereof, or as to the breach of this contract, then either party shall forthwith give to the other notice of such dispute or difference and such dispute or difference shall be referred to the Superintending Engineer of the circle and his decision thereon shall be final conclusive and binding on all the parties." 7. Admittedly, there was a contract between the petitioner and the respondents for execution of certain work and the contract contains the aforesaid arbitration clause. Admittedly, there was a contract between the petitioner and the respondents for execution of certain work and the contract contains the aforesaid arbitration clause. It is also admitted fact that a dispute subsequently arose with regard to the non- completion of the work. The stand taken by the respondents in the counter-affidavit regarding the non-completion of work because of the fault of the petitioner, blacklisting it and non- entitlement of any claim are the questions, which is beyond the jurisdiction of this authority. It is for the Arbitral Tribunal to decide all those issues including the issues whether the claim is belated one. The respondents have not disputed the issuance of notice dated 23.8.2002 by the petitioner invoking arbitration clause and requesting for adjudication of disputes by the arbitrator. The respondents did not respond to the said notice. In such circumstances, it is fit and proper to appoint an independent person as an arbitrator for deciding the disputes alleged to have been arisen between the parties. 8. I, therefore, appoint Mr. Justice A.P. Sinha, Retd. Judge of the Patna High Court as an arbitrator and he is requested to enter into the reference and give award within four months from the date of entering into the reference.