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Rajasthan High Court · body

2013 DIGILAW 1042 (RAJ)

Raghuveer Sharan Gupta v. Rajasthan Housing Board

2013-05-20

PREM SHANKER ASOPA

body2013
JUDGMENT 1. - By this arbitration application, the Applicant is seeking appointment of the Arbitrator for resolving the dispute between the parties, arising out of agreement dated 15.10.2007 (Anx.2) on account of return of the papers for referring the matter to the Empowered Standing Committee vide letter dated 17.12.2012 (Anx.R-1) on the ground that the payment in question was pending before the higher authority. 2. Briefly stated, the facts of the case, are that the Applicant was awarded the work of "construction of LIG 120 Nos. (Stilt+10) Skeleton flats at Pratap Apartment Sector No. 29, Zone-I, Pratap Nagar, Sanganer, Jaipur" under the Agreement No. 2/2007-08 dated 15.10.2007 (Anx.2). It is further stated in the arbitration application that the Non-applicants have breached the terms and conditions of the signed agreement dated 15.10.2007 by withholding huge amount of the Applicant, without any reason, and further, violated and breached the signed agreement, therefore, the Applicant filed an application along with the requisite fees on 25.1.2010 (Anx.5) for referring the dispute under Clause 23 of the Agreement, to the Empowered Standing Committee with regard to the cost of escalation due to increase of cost of material and labour etc. as per Clause 45 of the Agreement but the same was returned by the Non-applicant vide letter dated 17.12.2012 mentioning therein that the payment of the aforesaid escalation cost is pending before the Non-applicants. The period of thirty days is to be counted from the date of filing of the application dated 25.1.2010 and on expiry of thirty days, the Non-applicants have forfeited their right to refer the matter to the Empowered Standing Committee. Even after filing of the present arbitration application, the payment has not been made so far. Further, the unusual delay in the matter of payment of the bill amounts to withholding the payment and the same creates dispute between the parties. 3. Non-applicants have filed reply to the arbitration application stating therein that since the claim is still pending, the application for referring the matter to the Empowered Standing Committee as well as the the present application is not maintainable. 4. 3. Non-applicants have filed reply to the arbitration application stating therein that since the claim is still pending, the application for referring the matter to the Empowered Standing Committee as well as the the present application is not maintainable. 4. Counsel for the Applicant submits that once the arbitration application for making the reference to the Empowered Standing Committee is filed along with the claim, the Non-applicants have no right to return the same without referring the matter to the Empowered Standing Committee which will be the competent authority for either rejecting the claim or accepting the same. Counsel for the Applicant further submits that the period of thirty days is to be counted from the date of filing of the application dated 25.1.2010 and on expiry of thirty days, the Non-applicants have forfeited their right to refer the matter to the Empowered Standing Committee, therefore, the Applicant is entitled to the appointment of the independent Arbitrator. Even after filing of the present arbitration application, the payment has not been made so far. Further, the unusual delay in the matter of payment of the bill amounts to withholding the payment and the same creates dispute between the parties. 5. Counsel for the Non-applicant submits that since the issue was pending before the authorities concerned, the application for referring the matter to the Empowered Standing Committee was not maintainable, therefore, it was returned. 6. I have gone through record of the arbitration application and further considered the aforesaid rival submissions of counsel for the parties. 7. On consideration of the aforesaid submissions made by the counsel for the parties, I am of the view that the authorities of the Non-applicants had no power to return the application for reference of the dispute to the Empowered Standing Committee which in the present case is mainly escalated cost, therefore, the order dated 17.12.2012 of returning back the papers is without jurisdiction and the same is set aside. The period of thirty days is to be counted from the date of filing of the application dated 25.1.2010 and on expiry of thirty days, therefore, the Non-applicants have forfeited their right to refer the matter to the Empowered Standing Committee. Since the matter has not been referred by the Non-applicants to the Empowered Standing Committee within thirty days from 25.1.2010, the Applicant is entitled to the appointment of an independent Arbitrator. Since the matter has not been referred by the Non-applicants to the Empowered Standing Committee within thirty days from 25.1.2010, the Applicant is entitled to the appointment of an independent Arbitrator. Even after filing of the present arbitration application, the payment has not been made so far. Further, the unusual delay in the matter of payment of the bill amounts to withholding the payment and the same creates dispute between the parties. 8. In view of the above, I appoint Mr. Justice S.P. Pathak, Former Judge of this Court as the Sole Arbitrator and the matter is referred to him for resolving the dispute between the parties, arising out of the agreement dated 15.10.2007. The Sole Arbitrator will fix his fee according to the Arbitration Manual. All objections would be open to be raised by the Non-applicants before the Sole Arbitrator. 9. The application is allowed. 10. A copy of this order be sent to Mr. Justice S.P. Pathak, Former Judge, 164, Santosh Nagar, New Sanganer Road, Jaipur.Application Allowed. *******