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2008 DIGILAW 1788 (RAJ)

Ram Niwas and Co. v. Executive Engineer

2008-07-28

MANAK MOHTA

body2008
JUDGMENT 1. - Heard learned counsel for the parties in respect of application filed under Sec. 11 of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator. 2. It is submitted by the learned counsel for the applicant that the applicant is a registered partnership firm engaged in the work of contractor-ship. The applicant was awarded work vide work-order No. Acctt./6673 dated 15.01.2005 of "Re-sectioning (Bed-cutting) and preparing of Bank as per design of GDC from RD 54.00 to 60.00" vide Agreement No. 72/2004-05 having arbitration Clause-23 in it, in which, it has been provided that in case any sort of dispute arise in respect of said agreement, the matter will be referred to arbitrator. It is further slated that as per the work-order, the work was to commence from 25.01.2005 and was to be completed by 24.05.2005. The applicant completed the contract-work to the satisfaction of Department on 14.04.2005 but despite completion of work, the payment of final bills to the tune of Rs.2,00,000/- (including the amount of security deposit of Rs. 1,31,000/-) was not paid without any rhyme or reason, on which, letters dated 10.06.2006, 18.03.2006 and 27.02.2006 (Annex.1) were sent. After that notice dated 11.08.2006 (Annex.2) was sent to the Executive Engineer, G.F.C., Division, Suratgarh. Therefore, a legal notice dated 26.06.2007 (Annex.3) in terms of arbitration Clause was also given to the Executive Engineer, GFC Division, Suratgarh along with cheque No. 435023 dated 26.06.2007 for a sum of Rs.4000/- (amount of settlement fee @ 2% of the amount in "dispute") for referring the dispute to arbitrator as per Clause 23 of the Agreement but to no avail. Thereafter the present application has been filed in this respect and lastly it was prayed that the application may be allowed and the matter be referred to Arbitrator. 3. Learned Dy. Government Advocate opposed the application and reiterated the submissions made in reply. It was contended the applicant had commenced the work on 27.01.2005 but it did not complete the work in time. 3. Learned Dy. Government Advocate opposed the application and reiterated the submissions made in reply. It was contended the applicant had commenced the work on 27.01.2005 but it did not complete the work in time. The payment had been made to the applicant for the work done by him on the basis of first to fifth running bills and thereafter vide notice, the applicant was asked to complete the work and was also informed that if he will not complete the work, the same will be got done by other contractor at his risk and cost, despite that, the applicant neither re-started the work nor completed the same. It was submitted that so far as the amount of security is concerned, the same is deposited in the name of applicant-firm in SD register and if the applicant will complete the work, he will be paid the payment of final bill as well as security amount and since the applicant had not completed the work, he was not entitled to get the payment of final bills and the security money. Further it was submitted that the applicant moved notice for referring the matter for arbitration along with cheque of Rs.4000/-, but the cheque was missed, therefore, he was informed but since the applicant had not submitted another cheque, therefore, the matter could not be referred to Standing Committee. Lastly, it was submitted that if the applicant submits fresh application along with requisite cheque of the due amount, then his matter will be considered for referring to the Standing Committee and it was prayed that the application may kindly be dismissed. 4. I have heard both the learned counsel for the parties and have gone through the material available on record and the contentions advanced before me. 5. After considering the contentions, it is the admitted fact on record that a work-contract was given to the applicant and an Agreement No.72/2004-05 was executed between the parties., Further, the factum of dispute has been raised and for resolving that dispute provision of arbitration Clause is there in the agreement itself, which is prima facie established. 5. After considering the contentions, it is the admitted fact on record that a work-contract was given to the applicant and an Agreement No.72/2004-05 was executed between the parties., Further, the factum of dispute has been raised and for resolving that dispute provision of arbitration Clause is there in the agreement itself, which is prima facie established. It is also borne out from the application that the applicant had lastly sent notice dated 26.06.2007 (Annex.3) for referring the dispute to "Standing Committee" and the applicant had also deposited the requisite fees for referring the dispute to Arbitrator in terms of Clause 23 of the agreement but despite that, the matter was not referred to Arbitrator nor he was informed in time with regard to the loss of cheque. He was informed later on when the time for consideration of his application had expired. Now they cannot raise such pleas. 6. In the result, the application deserves to be allowed. Miss Chandra Kanta Gupla, Retired District and Sessions Judge, resident of Plot No.5, Bhagwali Bhawan, Sadul Colony, Bikaner (Raj.) is hereby appointed as the Sole Arbitrator to resolve the dispute between the parties. The parties are free to raise their dispute, claim, counter-claim etc., before the Arbitrator. Initial expenses of Rs. 2000/- shall be deposited (subject to adjustment at the lime of final determination of fees) by the applicant with the Arbitrator so that the learned Arbitrator may start the arbitral proceedings. The fee of arbitrator and the cost of arbitration shall be determined by the Arbitrator himself and that shall be borne equally by the parties. The Arbitrator may be informed accordingly. The application stands disposed of accordingly. 7. A copy of this order may also be sent to the concerned District Judge with a direction to-make suitable arrangement of accommodation in the Court and a Reader and staff be provided to the Arbitrator if such a request is made by her.Application Disposed of. *******