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Himachal Pradesh High Court · body

2019 DIGILAW 715 (HP)

Deepak v. State of H. P.

2019-06-14

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, ACJ (Oral) This judgment shall dispose of all these applications filed under Section 11(6) of the Arbitration and Conciliation Act, with a prayer for appointment of Arbitrator to adjudicate the disputes having arisen during the course of construction of the work namely, ?C/o R/R Damges to RCD Road Km 21/195 to 92/695 (SH:- Hiring of Excavator cum loader [Pock Lane] for removal of slips at various RD's ([Portion Dodra to Kawar]). The agreement number, date thereof, date of completion of the work and the cost of work awarded is tabulated hereinbelow:- Arbitration Case No. 10 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD Road Km 21/195 to 92/695 128 of 2016-17. 23.12.2016 25.3.2017 2,20,500/- Arbitration Case No. 12 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD Road Km 21/195 to 92/695 126 of 2016-17. 23.12.2016 28.3.2017 2,20,500/- Arbitration Case No. 13 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD Road Km 21/195 to 92/695 127 of 2016-17. 23.12.2016 16.3.2017 2,20,500/- Arbitration Case No. 14 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to link road to village Jiskoon Km 0/00 to 8/00. 122 of 2016-17. 23.12.2016 4.1.2017 2,20,500/- Arbitration Case No. 15 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to link road to village Jiskoon Km 0/00 to 8/00. 121 of 2016-17. 23.12.2016 15.1.2017 2,20,500/- Arbitration Case No. 16 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to link road to village Jiskoon Km 0/00 to 8/00. 33 of 2016-17. 8.7.2016 31.7.2016 2,20,500/- Arbitration Case No. 17 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 130 of 2016-17. 23.12.2016 5.4.2017 2,20,500/- Arbitration Case No. 18 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 32 of 2016-17. 130 of 2016-17. 23.12.2016 5.4.2017 2,20,500/- Arbitration Case No. 18 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 32 of 2016-17. 8.7.2016 20.7.2016 2,20,500/- Arbitration Case No. 19 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 30 of 2016-17. 8.7.2016 20.7.2016 2,20,500/- Arbitration Case No. 20 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 125 of 2016-17. 23.12.2016 25.4.2017 2,20,500/- Arbitration Case No. 21 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 124 of 2016-17. 23.12.2016 6.5.2017 2,20,500/- Arbitration Case No. 22 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 123 of 2016-17. 8.7.2016 1.8.2016 2,20,500/- Arbitration Case No. 23 of 2019 Name of work Agreement number Date of agreement Date of completion Claim C/o R/R Damages to RCD road KM 21/195 to 92/695. 129 of 2016-17. 23.12.2016 4.1.2017 2,20,500/- 2. The work in terms of the agreement executed between the parties was to be completed within 15 days from the date of issuance of letter of award. Accordingly, the work was completed by the petitioners-Contractors within the stipulated period, as indicated in the tabulated information hereinabove. The entries qua measurement of the work executed were made by the respondents in the measurement book. The Executive Engineer concerned also certified the work so executed on the spot. However, the payments, irrespective of the final bill prepared and submitted were not made to the Contractors. The procedure prescribed under the contract agreement for resolution of disputes is contained in Annexure C-1. Therefore, when the respondents failed to make the payment to the petitioners as per bills they raised, the Chief Engineer, HPPWD, Shimla zone was requested vide Annexure C-2 to appoint Arbitrator to adjudicate the disputes having arisen between the parties on both sides. The Arbitrator(s), however, was not appointed, hence these applications with a prayer to appoint the Arbitrator for adjudication of the disputes having arisen between the parties. 3. The Arbitrator(s), however, was not appointed, hence these applications with a prayer to appoint the Arbitrator for adjudication of the disputes having arisen between the parties. 3. In reply, the award of the work to the petitioners-Contractors has not been disputed. It is, however, submitted that no work was found to be executed on the spot. The entries made by the Junior Engineer, incharge in the MB were verified on inspection of the site and it transpired that work was never executed by the petitioners-Contractors. The entries in the MB were accordingly cancelled. Therefore, according to the respondents, there exist no disputes which need to be adjudicated upon by the Arbitrator. 4. On hearing Mr. J.S. Bhogal, learned Senior Advocate assisted by Mr. Tarunjeet Singh Bhogal and Ms. Srishti Verma, Advocates representing the petitioners and learned Additional Advocate General on behalf of the respondents as well as going through the record, the claims and counter-claims as laid on both sides constitute disputes within the meaning of Clause 25 (Annexure C-1) of the contract agreement. The petitioners- Contractors have executed the work awarded to them or not is a question to be gone into during the course of arbitral proceedings and adjudicated by learned Arbitrator. Therefore, it cannot be believed by any stretch of imagination that there exist no disputes between the parties in these applications. Keeping in view, work awarded, identical in nature and at a meager cost of Rs.2,20,500/- for each work, the parties on both sides agreed for appointment of single Arbitrator to adjudicate the disputes in all these cases. Consequently, Shri J.S. Mahantan, District and Sessions Judge (Retd.) is appointed as Arbitrator to enter upon the reference in these matters and adjudicate the claims/counter-claims to be laid by the parties on both sides. In view of the paltry amount of Rs.2,20,500/- involved in each case, the fee of learned Arbitrator is fixed as Rs. 1,00,000/- in lump sum in all the cases, out of which Rs.50,000/- shall be paid to him in advance within two weeks after he enters upon the reference and remaining well before the pronouncement of the award. 5. All the petitions are accordingly allowed and stand disposed of, so also the pending application(s), if any.