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2020 DIGILAW 436 (UTT)

Union Of India v. Kamkhya Enterprises

2020-11-05

RAVI MALIMATH

body2020
JUDGMENT Ravi Malimath, A.C.J. - 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. 2. Learned counsel for the petitioner contends that a contract was entered into between the petitioners and the respondents on 22.08.2014. 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 70 of the Contract dated , which relate to Arbitrator, is referred to by the learned counsel for the petitioner. The said clause provides for settlement of disputes through Arbitrator. Clause 70 of the Contract reads as under :- 70. Arbitration-All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of a [Serving Officer having degree in Engineering or equivalent or having passed final / direct final Examination of sub-Division II of Institution of Surveyor (India) recognized by the Govt. of India] to be appointed by the authority mentioned in the tender documents. Unless both parties agree in writing such reference shall not taken place until after the completion or alleged completion of the Works or termination or determination of the Contract under Condition Nos. 55, 56 and 57 hereof. Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53, or 54 hereof, such reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any other Contractor or Contractors or Agency or Agencies. Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the Government's right of recovery from the Contractor as provided in Condition 67 hereof. Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the Government's right of recovery from the Contractor as provided in Condition 67 hereof. If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place. The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence. The Arbitrator may proceed with the arbitration, exparte, if either party, inspite of a notice from the Arbitrator fails to take part in the proceedings. The Arbitrator may, from time to time with the consent of the parties, enlarge, the time for making and publishing the award. The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual, item of dispute. The arbitrator shall give reason for the award in each and every case irrespective of the value of claims or counter claims. The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion. The Award of the Arbitrator shall be final and binding on both parties to the Contract. 3. Xxx xxx xxx 4. Shri Bhuwanesh Joshi, learned counsel for the respondent, does not dispute the existence of an Arbitration clause in the Contract dated 22.08.2014. 5. 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 Atul Bahuguna, learned standing counsel for the Union of India and Shri Bhuwanesh Joshi, learned counsel for the respondent, would submit that Shri Devesh Chaturvedi, retired Colonel, R/o 42/1, Salawala, Dehradun, Uttarakhand, may be appointed as the sole Arbitrator. 6. 6. As learned counsels on either side are in agreement, Shri Devesh Chaturvedi, retired Colonel, R/o 42/1, Salawala, Dehradun, Uttarakhand, 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. 7. On his giving consent to arbitrate the disputes between the parties, Shri Devesh Chaturvedi, retired Colonel, R/o 42/1, Salawala, Dehradun, Uttarakhand, 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. 8. The arbitration application is disposed-off accordingly.