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2017 DIGILAW 1044 (HP)

Kashmir Singh v. State of HP

2017-09-11

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. This petition has been filed under sub-section (6) of Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of Arbitrator in terms of Clause 24 of the agreement. The petitioner was awarded the work relating to construction of Link Road from Dohra Nallah to Barahar (Barog) K.M. 0/0 to 10/0 (SH: Formation Cutting including R/Wall and Breast Wall, Parapets, Cross Drainage, Wire Crate in Dumping Site, setting out, Logo, K.M. Stone & Side Drain) under the World Bank funding Package No.H.P.06-30 (Phase-II) vide Award letter dated 18.12.2006, for a sum of Rs.2,64,65,462/-. The work was stipulated to be completed in a period of twelve months, which was to be reckoned from 10th day of issuance of letter of award. The Agreement (Annexure P-1) was entered into between the parties. Certain disputes arose between the parties. Petitioner sent a notice (Annexure–P2) to the respondents on 02.6.2016, seeking appointment of Arbitrator. Again, another notice, (Annexure P-3), was issued to the respondents on 07.9.2016 seeking the appointment of Arbitrator. However, the respondents have not appointed Arbitrator in terms of Clause-25.3 of the agreement. 2. Heard. Learned Additional Advocate General appearing for the respondents/State has argued that one of the person, out of the list approved by the State Government, may be appointed as Arbitrator. On the other hand, Mr. Suneet Goel, learned counsel appearing for the petitioner has argued that, as the respondents/State have failed to appoint Arbitrator despite several requests and within the reasonable time, therefore, some other person may be appointed as Arbitrator. 3. There is a dispute inter se the parties, which is evident, as the respondents had to appoint Arbitrator for the resolution of the dispute. 4. I am of the considered view that all the requirements of the Arbitration and Conciliation Act, 1996 have been fulfilled by the petitioner and the Arbitrator is required to be appointed to resolve the disputes, which have arisen between the parties. 5. The learned counsel for the petitioner has further argued that none of the person(s) from the list be appointed as Arbitrator, as the respondents could have appointed the Arbitrator, but as respondent had not exercised their discretion within stipulated time. Some other person be appointed as Arbitrator. 6. 5. The learned counsel for the petitioner has further argued that none of the person(s) from the list be appointed as Arbitrator, as the respondents could have appointed the Arbitrator, but as respondent had not exercised their discretion within stipulated time. Some other person be appointed as Arbitrator. 6. This Court has taken into consideration the arguments, as made by the learned counsel for the parties, the law on the aspect is gone into. The Hon’ble Supreme Court in Ace Pipeline Contracts(P) Ltd versus Bharat Petroleum Corpn. Ltd., (2007) 5 SCC 304 , has held as under:- “20. It may also not be out of place to mention that we are aware of the Departmental lethargy in making appointment of arbitrators in terms of the arbitration clause. Therefore, mandamus can be issued by the Courts in exercise of powers under Section 11(6) of the Act but the demand should be in the event of failure by the authorities to appoint arbitrators within the reasonable time. Courts are not powerless to issue mandamus to the authorities to appoint arbitrators as far as possible as per the arbitration clause. But in large number of cases if it is found that it would not be conducive in the interest of parties or for any other reasons to be recorded in writing, choice can go beyond the designated persons or institutions in appropriate cases. But it should normally be adhered to the terms of arbitration clause & appoint the arbitrator/arbitrators named therein except in exceptional cases for reasons to be recorded or where both parties agree for common name.” 7. In the instant case, there are no extraordinary circumstances to appoint any other Arbitrator, than the list, as it has not come on record that the Arbitrator named by the respondents are not fit to be appointed as Arbitrator. So, taking into consideration all the facts and circumstance come on record, this Court finds that Shri N.K. Sood, Senior Advocate is required to be appointed as Arbitrator and is accordingly appointed as Arbitrator to adjudicate the dispute arising inter se the parties. The Arbitrator is directed to enter into reference within a period of two weeks from the date of receipt of the copy of the order. Thereafter, the petitioner is directed to file claim petition within a period of two weeks. The Arbitrator is directed to enter into reference within a period of two weeks from the date of receipt of the copy of the order. Thereafter, the petitioner is directed to file claim petition within a period of two weeks. Reply be filed by the respondents within a further period of three weeks. The pleadings, including, rejoinder and counter-claim, shall also be completed by the parties within a period of eights weeks after entering into reference by the Arbitrator. Thereafter, the Arbitrator will afford an opportunity to the parties to place on record the documents, if they intend to do so, and evidence in any form by following the procedure with the consent of the parties. The Registry of this Court is directed to immediately inform Mr. N.K. Sood, Senior Advocate about the passing of the order by sending a copy of this order to him. 8. In view of this, the petition stands disposed of. Pending application, if any, also stands disposed of. No costs.