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Uttarakhand High Court · body

2020 DIGILAW 352 (UTT)

Sundar Singh Bora v. State of Uttarakhand

2020-09-24

RAVI V.MALIMATH

body2020
ORDER : Ravi V. Malimath, Actg. C.J. 1. Miscellaneous Application (IA No. 6456 of 2020), along with counter-affidavit, is taken on record. 2. The petitioner is before this Court, in this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the Act"), seeking appointment of a sole Arbitrator to resolve the disputes that have arisen between the parties. 3. Learned counsel for the petitioner contends that a Contract was executed between the petitioner and the respondents. In respect of the said Contract, certain disputes have arisen between the parties and as such the petitioner claims that the sole Arbitrator be appointed to resolve the disputes that have arisen between the parties. In that regard, Clause 31.3 of the G.P.W. Form-9 (Revised) dated 08.01.2014, which relates to Arbitration, is referred to by the learned counsel for the petitioner. The said clause provides for settlement of disputes through Arbitrator. Clause 31.3 of the G.P.W. Form-9 (Revised) dated 08.01.2014 reads as under:- (31.3) Except where otherwise provided in the contract all questions and disputes relating to meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality or workman ship or materials used in the work or as to any other questions, claim, right, or rates for extra items sanctioned and decided or not by the competent authority under the condition of the contract, matter or thing whatsoever, in any way arising but of or relating to the contract, designs, drawings, specifications estimates instructions or orders on these conditions or otherwise concerning the works, or the execution or failure to execute the same. Whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person or persons appointed by the Engineer-in-Chief, Uttarakhand Public Works Department, there will be no objection to any such appointments that the arbitrator so appointed is a Govt. servant that he had to deal with the matter to which the contract relates and that in the course of his duties as Government servant he had expressed views on all or any of the matters in dispute or differences. The arbitrator to whom the matter is originally or subsequently referred being incapacitate to act, the Engineer-in-Chief, shall appoint another person to act as arbitrator in accordance with the terms of contract. The arbitrator to whom the matter is originally or subsequently referred being incapacitate to act, the Engineer-in-Chief, shall appoint another person to act as arbitrator in accordance with the terms of contract. It is also a term of this contract that no person other than a person appointed by the Engineer-in-Chief of the Uttarakhand P.W.D. as aforesaid shall act as arbitrator and if for any reason that is not possible, the matter is not to be referred to arbitration at all the arbitrator's may form time to time, with the consent of the parties enlarge the time for making and publishing the award. Subject as aforesaid the provisions of Arbitration and conciliation Act 1996, or any statuary modification or re-enactment. Thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause. The sole arbitrator or arbitrators to be appointed by the Engineer-in-Chief, shall be of the status given below:- (a) For claim for amount in dispute of not Over Rs. 75,00,000 (Rs. Seventy five lakh) in the case of work order and in case of contracts accepted by an Assistant Engineer/Executive Engineer. Superintending Engineer of Uttarakhand P.W.D (b) For claims or amount in dispute of over Rs. 75,00000 and not over Rs. 2,00,000,00 (Rs. Two crore) Chief Engineer Level-II of Uttarakhand P.W.D (c) For claims or amount in dispute of aggregating to more than Rs. 2,00,000,00 (Rs. Two crore) and upto Rs. 5,00,000,00 (Rs. Five crore) Two Arbitrator one of the rank of Chief Engineer Level-II and one of the rank of Superintending Engineer Uttarakhand P.W.D (d) For claims or amount in dispute aggregating more than Rs. 5,00,000,00 crore (Rs. Five crore). Three persons One of the rank of Chief Engineer Level-II, Uttarakhand, P.W.D second will be of the rank of Superintending Engineer Uttarakhand P.W.D and third will be law officer of the Department if available otherwise another Superintending Engineer Uttarakhand P.W.D as nominated by Engineer in Chief. All disputes between the parties to the contract arising out of and relating to the contract shall after written notice by either to the contract to the other party, be referred to arbitration as above. Unless the parties otherwise agree, such reference shall not take place until after the completion or abandonment of the works or the determination of the contract. Unless the parties otherwise agree, such reference shall not take place until after the completion or abandonment of the works or the determination of the contract. The venue of arbitration shall be a place or places as may be fixed by the arbitrator in his/their sole discretion. Any suit or application for the enforcement of this arbitration Clause shall be filed in the competent court within District, and no other court of any other district of the Uttarakhand or outside Uttrakhand shall have any jurisdiction in the matter. The award of the arbitrator shall be, final, conclusive and binding on both the parties to the contract. 4. The learned brief holder for the State has filed the counter affidavit. He does not dispute that there is existence, as such, of an arbitration clause. What the learned brief holder disputes is that there is nothing, which is required to be arbitrated. 5. Under Section 11(6A) of the Act, the High Court, while considering any application under Section 11(6) thereof, must confine its examination only to the existence of an Arbitration agreement. The existence of an arbitration agreement has not been disputed by the respondent, and has in fact been admitted. 6. When this Court asked learned counsels for both the parties to suggest a common name of a person who could be appointed as an Arbitrator, both Shri Amish Tewari, learned counsel for the petitioner and Shri B.P.S. Mer, learned brief holder for the State-respondents, would submit that Shri B.S. Kaira, Retired Chief Engineer, Rural Engineering Services, R/o. Cross 9, Tapovan Enclave, Rajpur Road, Dehradun, may be appointed as the sole Arbitrator. 7. As learned counsels on either side are in agreement, Shri B.S. Kaira, Retired Chief Engineer, Rural Engineering Services, R/o. Cross 9, Tapovan Enclave, Rajpur Road, Dehradun, is appointed as an Arbitrator after his disclosure in writing is obtained in terms of Section 11(8) of the Act; and only after receipt thereof shall his appointment, as an Arbitrator, come into force. 8. On his giving consent to arbitrate the disputes between the parties, Shri B.S. Kaira, Retired Chief Engineer, Rural Engineering Services, R/o. Cross 9, Tapovan Enclave, Rajpur Road, Dehradun, shall enter reference, and shall pass an award in accordance with law. The learned Arbitrator shall fix his fees in consultation with both the parties. 9. The arbitration application is disposed off accordingly.