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2018 DIGILAW 287 (JHR)

Icon Controls Pvt. Ltd. v. Mecon Ltd.

2018-02-02

APARESH KUMAR SINGH

body2018
ORDER : Heard learned counsel for the parties. 2. Applicant has sought appointment of an independent Arbitrator under Clause 36. 1 of the agreement being work order dated 25th May, 2010, where under the scope of the work to be executed by the applicant was as under : "Order for design, engineering, manufacture, supply, erection, testing, commissioning of instrumentation and control equipments including assistance during Performance Guarantee Test of Battery and Post Commissioning Services (Pkg. No SE869) required for New 7m tall Coke Oven Battery #6 at Rourkela Steel Plant. Rourkela." 3. According to the applicant. the dispute arose as the work could not be completed within the scheduled nine months period due to the reasons beyond control of both the parties as well as. non-availability of fronts. As such. time to time extension was granted by the respondents to complete the work. The matter could not be resolved as there were disputes relating to non-availability of fronts and claims of payment by the petitioner-applicant also remained unredressed for the work executed. According to the petitioner. respondents had received the Preliminary Acceptance Certificate and Commissioning Certificate from Rourkella Steel Plant as the petitioner had completed the job. However, despite request for payment, no action was taken by the respondents. Reminder was also sent vide Annexures : 4 and 5. 4. Petitioner being aggrieved due to non-responsive approach of the respondents invoked the Arbitration Clause, which reads as under : "36.0 ARBITRATION Any disputes. differences. whatsoever. arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Order shall be settled between MECON and the Contractor amicably, If, however, the Purchaser and the Contractor are not able to resolve theirs disputes/differences amicably as aforesaid the said disputes/differences shall be settled by Arbitration in accordance with the Rules of Arbitration and the award made in pursuance thereof shall be binding on the parties. The arbitration shall be governed and regulated in all respect according to Laws of India. The Arbitration proceedings in case of other Indian companies shall be regulated and governed by Indian Arbitration and Conciliation Act, 1996, or such modification thereof. 36.2. The venue of arbitration proceeding shall be Ranchi. 36.3. The arbitration shall be governed and regulated in all respect according to Laws of India. The Arbitration proceedings in case of other Indian companies shall be regulated and governed by Indian Arbitration and Conciliation Act, 1996, or such modification thereof. 36.2. The venue of arbitration proceeding shall be Ranchi. 36.3. Work under this Order shall be continued by the Contractor during the arbitration proceedings, unless otherwise directed in writing by MECON or unless matter is such that the work cannot possibly be continued until the decision of the arbitrator is obtained. " 5. Letter dated 17th May, 2016 (Annexure-6), however, remained unresponded. Neither payments were made nor appointment of any Arbitrator was made. That is why petitioner approached this Court invoking the jurisdiction of Hon'ble the Chief Justice for appointment of an independent Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. 6. Respondents have filed their written statements. According to counsel for the respondents, during the period of correspondence and even in course of pendency of this application, efforts were made to settle the matter amicably. However, as appears, parties have not been able to resolve their disputes. The request for appointment on part of the petitioner has however not been disputed by the respondents. 7. Necessary ingredients to be fulfilled for invoking the jurisdiction of this Court for appointment of an independent Arbitrator is prima facie satisfied. There is an arbitration clause in the agreement between the parties. referred to above. There is an admitted dispute in relation to the execution of the work also. Despite the statutory notice by the petitioner, no appointment of Arbitrator has been made by the respondent within the time prescribed. 8. In such circumstances. I am satisfied that request for appointment of an Arbitrator to adjudicate the dispute between the parties can be allowed. Accordingly. I propose to appoint Mr. Sajjan Kumar Dubey, (Retd.) Principal District Judge. Deoghar as an independent Arbitrator to adjudicated the dispute between the parties. 9. Learned Registrar General is directed to communicate the instant order to the proposed Arbitrator for submission of his declaration in terms of Section 12(1) of the Arbitration and Conciliation Act, 1996. as amended by Act No. 3 of 2006. 10. Let the case appear after Holi Holidays along with declaration. Petition disposed of.