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2008 DIGILAW 727 (DEL)

SANRACHANA (INDIA) INC v. ULTIMATE FLEXIPACK LTD.

2008-07-31

RIMA KOHLI

body2008
JUDGMENT Hima Kohli, J. (Oral)- The present petition is filed by the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996, invoking therein an arbitration clause No. 11 contained in the General Conditions of Contract governing the parties. 2. It is the case of the petitioner that the petitioner is a Contractor executing various types of works with the Government and private agencies. The respondent floated a tender for execution and completion of a work named as "Balance Civil Work at Ultimate Elexi Pack Limited Bari Barhmana, Jammu". 3. The petitioner submitted its tender to the respondent which was accepted vide letter of intent dated 21.10.2005. Thereafter, the petitioner executed the work at the site. It is claimed that in the course of execution of the work, disputes and differences arose between the parties, and as a result, the work could not be completed till the end of November, 2006. 4. Counsel for the petitioner states that in the aforesaid circumstances his client invoked the arbitration clause No. 11 contained in the General Conditions of the Contract governing the parties, by issuing a letter dated 28.8.2007, to the respondent requesting the respondent to agree to anyone of the three names given therein for appointment as a Sole Arbitrator. Instead of responding to the aforesaid request, the respondent replied vide letter dated 10.10.2007, refusing to concur in the appointment of the Sole Arbitrator on the ground that the work order dated 22.10.2005, issued in favour of the petitioner does not contain an arbitration clause. Aggrieved by the aforesaid failure on the part of the respondent to agree to the appointment of a Sole Arbitrator, the petitioner has filed the present petition. 5. Notice was issued in the present petition on 23.11.2007. Appearance was entered on behalf of the respondent on 15.2.2008, and reply filed. During the course of arguments, Counsel for the respondent was directed to obtain instructions from his client as to the stand of the respondent in the matter. Counsel for the respondent states that though in the reply, the stand of the respondent has been that the parties are not governed by an arbitration clause as the same is not part of the Letter of Intent issued to the petitioner, however, on instructions from his client, he agrees to the appointment of a Sole Arbitrator to adjudicate all the disputes inter se the parties. He further submits that the respondents have also raised certain disputes against the petitioner which may be permitted to be referred to the learned Arbitrator. Both the parties submit that a retired Judge of this Court be appointed as an Arbitrator to adjudicate all the disputes between the parties. 6. In these circumstances, the present petition is allowed. Justice Jaspal Singh (Retd.) is appointed as the Sole Arbitrator to adjudicate all the disputes arising between the parties. The parties shall share the fee equally, which shall be fixed by the Arbitrator. The parties shall appear before the Arbitrator on 13th August, 2008 at 5.00 p.m. 7. The Registry is directed to forward a copy of the order to the Arbitrator forthwith. The parties are also directed to intimate the Arbitrator about the order. 8. The petition is disposed of. Petition allowed.