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2006 DIGILAW 86 (JHR)

S. K. Tekriwal v. State Of Jharkhand

2006-02-02

M.Y.EQBAL

body2006
ORDER M.Y. Eqbal, J. 1. In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 petitioner has prayed for appointment of Arbitrator for settlement of dispute and claim of the petitioner for the work undertaken in the District of Godda for construction of rural road including bridge and culverts etc. 2. Petitioners case is that after completion of the formalities as required under the advertisement, a contract agreement was executed and signed on 19.3.1997 between the parties for the construction of rural road including bridge and culverts in Boarijore Block of Godda. After execution of the agreement petitioner said to have utilized all adequate resources as such manpower, Plant and equipment and necessary infrastructural to ensure that the work was continued in full swing so as to complete the entire work within the fixed time. It is contended that the sites of the work were handed over to then petitioner on 12.5.1997 and the work was commenced on 24.5.1997. However, the work was badly obstructed to the reasons and circumstances beyond the control of the petitioner. According to the petitioner, Clause 34 of the award of the contract speaks about the appointment of adjudicator. Petitioners case is that claim was made on 18.5.2002 before the retired Engineer-in-Chief, Technical Vigilance Cell, Road Construction Department, Govt. of Bihar but nothing was done. Petitioner alleged to have requested the respondent for appointment of Committee of Arbitrator in matter of disputes arising out of contract package No. 49, construction of rural road including bridge and culverts by sending representation dated 29.10.2002. Petitioner said to have again made representation on 31.3.2003 and 4.8.2004 but all in vein. Hence, this application. 3. A counter affidavit has been field by the respondents stating inter alia that application under Section 11(6) of the Act is wholly misconceived and is not maintainable. It is stated that terms of agreement does not sanction appointment of arbitrator rather according to the agreement, matter can at best be referred to the adjudicator. Respondents further case is that the instant application is hopelessly barred by limitation and even the matter cannot now be referred to the adjudicator. Respondents case is that petitioner did not complete the work within 24 months from handing over the site. The date of completion of work was 23.5.1999. Respondents further case is that the instant application is hopelessly barred by limitation and even the matter cannot now be referred to the adjudicator. Respondents case is that petitioner did not complete the work within 24 months from handing over the site. The date of completion of work was 23.5.1999. Respondents further case is that petitioner for the first time made his claim on 18.5.2002 when the project was closed as far back as in June 2000. 4. I have heard Mr. Saurav Arun, learned Counsel for the petitioner and Mr. M.S. Akhtar, learned Standing Counsel No. II. 5. Petitioner has filed the instant application on the basis of Clauses 24 and 25 of the Contract Agreement, which reads as under : 24. Disputes 24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the contractor or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Engineers decision. 25. Procedure for Disputes 25.1 The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute. 25.2 The Adjudicator shall be paid daily at the rate specified in the Contract Date together with reimbursable expenses of the types specified in the Contract Date and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days, the Adjudicators written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicators decision will be final and binding. 6. From plain reading of the aforesaid Clause 24 of the contract it provides that when the contractor has reason to believe that decision taken by the Engineer was either outside the authority given to the Engineer by the contractor or that the decision was wrongly taken then such decision shall be referred to the adjudicator within 14 days of the notification of the Engineers decision. Clause 25 provides that if the decision is referred to the adjudicator by the Engineer then adjudication shall give a decision within 28 days of receipt of a notification of a dispute. Clause 25 provides that if the decision is referred to the adjudicator by the Engineer then adjudication shall give a decision within 28 days of receipt of a notification of a dispute. It further provides that if the decision is reached by the adjudicator either party may refer the decision of the adjudicator to an arbitrator within 28 days. It further provides that if either party fails to refer the dispute to arbitration within 28 days the decision of the adjudicator shall be final and binding. 7. It is admitted case of the petitioner that for the first time claim was made on 18.5.2002 before the retired Engineer-in-Chief which was followed by another representation dated 29.10.2002 wherein request was made for referring the matter in dispute to the Committee of Arbitrator as per Clause 25 of the contract agreement. It has not been disputed by the petitioner that the scheme was closed as far back as in June, 2000. Nothing has been brought on record by the petitioner to show that it ever approached the adjudicator requesting him to give his decision as contemplated under Clause 24.1 of the contract. Petitioner has also not exhausted the procedure provided under Clause 25 of the contract agreement. It was only after two years of the closure of the scheme, petitioner filed representation and thereafter moved the instant application under Section 11(6) of the Act for appointment of independent Arbitrator. In my opinion, the instant application is belated one and is barred by limitation. The application is also not maintainable because of non-compliance of the procedure provided under. Clauses 24 and 25 of the Contract. 8. For the reasons aforesaid, this request petition is dismissed as not maintainable.