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Himachal Pradesh High Court · body

2019 DIGILAW 1250 (HP)

Stuti Builders v. Chief Engineer

2019-08-30

V.RAMASUBRAMANIAN

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JUDGMENT : V. Ramasubramanian, J. These two applications are between the same parties and the applications are filed under Section 11(6) of the Arbitration and Conciliation Act, 1996. 2. Heard Mr.Suneet Goel, learned counsel appearing for the petitioner and Mr.Adarsh K. Sharma, learned Additional Advocate General appearing for the respondents. 3. The petitioner herein was awarded a work of providing Permanent Sewerage System to Kangra town, under two different work orders dated 15.09.2012 and 29.06.2013. The value of the work under the first contract was Rs.1,02,99,299/-. The value of work under the second contract was Rs.1,56,87,546/-. 4. It appears that due to the objections raised by private land owners, the work in respect of the first contract was stopped in June 2016. Subsequently, the permission was revived. Claiming that the stoppage of work resulted in huge losses, the petitioner made a claim for monetary compensation in respect of the first contract. 5. Similarly, the work in respect of the second contract was stopped in October 2016 and was resumed in January 2017. The petitioner claims to have suffered losses even in respect of this contract. 6. Therefore, by separate notices dated 22.04.2019, the petitioner sought the appointment of a sole Arbitrator for resolving the disputes arising under both the contracts. It appears that the respondent appointed one Mr.R.S. Chaudhary, Engineer-inChief(retd.) as the sole Arbitrator. However, he refused to act, in view of the amendment in the Act. 7. Therefore, the petitioner has come up with the above applications. 8. It is stated in the reply filed by the respondents that after Mr.R.S. Chaudhary refused to enter arbitration, the respondents appointed a serving Superintending Engineer (Arbitration). Therefore, the respondents pray that the provision of Section 11(6) of the Act cannot be invoked after the appointment of the Arbitrator. However, it is admitted that the Superintending Engineer nominated by the respondents, is an employee of the Public Works Department. The respondents are only the Irrigation and Public Health Department. In other words, the employer of the person appointed as a sole Arbitrator is the Government of H.P. Therefore, there is a statutory prohibition. 9. In view of the above, the applications are allowed and Hon'ble Mr.Kuldip Singh, retired Judge of this Court is appointed as an Arbitrator. Aforesaid Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. 9. In view of the above, the applications are allowed and Hon'ble Mr.Kuldip Singh, retired Judge of this Court is appointed as an Arbitrator. Aforesaid Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open for the learned Arbitrator to determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act. 10. Needless to say, award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. However, it is made clear that the learned Arbitrator shall commence the proceedings from the stage at which the mandate of the previous Arbitrator got terminated. 11. The applications stand disposed of, as indicated hereinabove alongwith pending applications, if any. JUDGMENT : V. Ramasubramanian, J. These two applications are between the same parties and the applications are filed under Section 11(6) of the Arbitration and Conciliation Act, 1996. 2. Heard Mr.Suneet Goel, learned counsel appearing for the petitioner and Mr.Adarsh K. Sharma, learned Additional Advocate General appearing for the respondents. 3. The petitioner herein was awarded a work of providing Permanent Sewerage System to Kangra town, under two different work orders dated 15.09.2012 and 29.06.2013. The value of the work under the first contract was Rs.1,02,99,299/-. The value of work under the second contract was Rs.1,56,87,546/-. 4. It appears that due to the objections raised by private land owners, the work in respect of the first contract was stopped in June 2016. Subsequently, the permission was revived. Claiming that the stoppage of work resulted in huge losses, the petitioner made a claim for monetary compensation in respect of the first contract. 5. Similarly, the work in respect of the second contract was stopped in October 2016 and was resumed in January 2017. The petitioner claims to have suffered losses even in respect of this contract. 6. Claiming that the stoppage of work resulted in huge losses, the petitioner made a claim for monetary compensation in respect of the first contract. 5. Similarly, the work in respect of the second contract was stopped in October 2016 and was resumed in January 2017. The petitioner claims to have suffered losses even in respect of this contract. 6. Therefore, by separate notices dated 22.04.2019, the petitioner sought the appointment of a sole Arbitrator for resolving the disputes arising under both the contracts. It appears that the respondent appointed one Mr.R.S. Chaudhary, Engineer-inChief(retd.) as the sole Arbitrator. However, he refused to act, in view of the amendment in the Act. 7. Therefore, the petitioner has come up with the above applications. 8. It is stated in the reply filed by the respondents that after Mr.R.S. Chaudhary refused to enter arbitration, the respondents appointed a serving Superintending Engineer (Arbitration). Therefore, the respondents pray that the provision of Section 11(6) of the Act cannot be invoked after the appointment of the Arbitrator. However, it is admitted that the Superintending Engineer nominated by the respondents, is an employee of the Public Works Department. The respondents are only the Irrigation and Public Health Department. In other words, the employer of the person appointed as a sole Arbitrator is the Government of H.P. Therefore, there is a statutory prohibition. 9. In view of the above, the applications are allowed and Hon'ble Mr.Kuldip Singh, retired Judge of this Court is appointed as an Arbitrator. Aforesaid Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open for the learned Arbitrator to determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act. 10. Needless to say, award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. 10. Needless to say, award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. However, it is made clear that the learned Arbitrator shall commence the proceedings from the stage at which the mandate of the previous Arbitrator got terminated. 11. The applications stand disposed of, as indicated hereinabove alongwith pending applications, if any.