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Madhya Pradesh High Court · body

2016 DIGILAW 76 (MP)

Supreme Buildcon Pvt. Ltd. v. Executive Engineer

2016-02-02

S.K.GANGELE

body2016
ORDER 1. The applicant has filed this application under section 11(6) of Arbitration and Conciliation Act 1996, in short “The Act of 1996” for appointment of Arbitrator. The applicant was awarded a contract of extension of Hamidia Hospital New OPD Block including electrification work. The work order was issued to the applicant in this regard on 27.9.2010. The period of completion of work was eighteen months. The applicant did not complete the work within time and abandoned the work. Notice to show cause in regard to termination of contract was issued to the applicant in terms of clause 3(c) of the agreement on 12.10.2011. The applicant submitted an explanation. However, the competent authority rescinded the contract, vide order dated 26.11.2011 in terms of Clause 3(c) of the contract agreement. 2. The applicant pleaded that the contract of the applicant has been terminated arbitrarily. It had issued a notice in regard to appointment of Arbitrator. However, no Arbitrator was appointed, hence this Court has power to appoint arbitrator. 3. The respondent in reply pleaded that in terms of Arbitration Agreement the applicant raised a dispute before the Superintendent Engineer invoking Clause 29 of the Agreement. The Superintendent Engineer rejected the claim of the applicant, vide order dated 26.4.2015. The applicant did not file any appeal against the aforesaid order. It is further contended by the respondent that in terms of Clause 29 of the agreement, the applicant can approach before the Arbitration Tribunal, hence the application is not maintainable. 4. Learned counsel for the applicant has submitted that because the contract of the applicant was rescinded, hence this Court has jurisdiction to appoint the Arbitrator. 5. I am not in agreement with the arguments, advanced by learned counsel for the applicant. Admittedly, the applicant was awarded works contract, hence as per provisions of Madhyastham Adhikaran Adhiniyam, the applicant has to approach the tribunal constituted by the Government. 6. The apex Court in M.P. Rural Road Development Authority v. L.G. Chaudhary Engineers and Contractors [ 2012(2) JLJ 329 (SC)= (2012)3 SCC 495 ], in paragraph 25 has held as under in regard to applicability of the Madhyastham Adhikaran Adhiniyam :- “25. In para 28 of the judgment, this Court while referring to the provisions of the M.P. Act held : “28. In para 28 of the judgment, this Court while referring to the provisions of the M.P. Act held : “28. The provisions of the Act referred to hereinbefore clearly postulate that the State of Madhya Pradesh has created a separate forum for the purpose of determination of disputes arising inter alia out of the works contract. The Tribunal is not one which can be said to be a Domestic Tribunal. The Members of the Tribunal are not nominated by the parties. The disputants do not have any control over their appointment. The Tribunal may reject a reference at the threshold. It has the power to summon records. It has the power to record evidence. Its functions are not limited to one Bench. The Chairman of the Tribunal can refer the disputes to another Bench. Its decision is final. It can award costs. It can award interests. The finality of the decision is fortified by a legal fiction created by making an Award a decree of a civil Court. It is executable as a decree of a civil Court. The Award of the Arbitral Tribunal is not subject to the provisions of the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996. The provisions of the said Acts have no application.” The apex Court has observed that the State of M.P. has created separate forum for the purpose of determination of dispute arising out inter alia out of works contract. In the present case, the contention of the petitioner is that his contract has been arbitrarily rescinded, however, the respondents pleaded that the petitioner failed to execute the work, hence his contract was rescinded. 7. The contract of the applicant was rescinded because the applicant did not complete the work in accordance with terms and conditions of the contract, it had abandoned the work, hence if there is a dispute in regard to damages, the petitioner has to approach the Tribunal in accordance with the provisions of Madhyastham Adhikaran Adhiniyam. I do not find any merit in this application. It is hereby dismissed. No order to costs.