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Rajasthan High Court · body

2023 DIGILAW 2064 (RAJ)

Sharma Engineering v. Executive Engineer

2023-11-03

MANINDRA MOHAN SHRIVASTAVA

body2023
ORDER Manindra Mohan Shrivastava, J. - Present is an application filed under Section 11(5) read with Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of arbitrator in the matter of dispute between the parties. 2. In the application, the applicant has stated that the applicant firm was awarded work of construction, strengthening, widening of re-construction of C.D. work on Baroni Shiwar Adalwara Sawai Madhopur Bhoori Pahari Kurgaon Road and an agreement bearing No.74/2010-11 came to be executed between the Executive Engineer, P.W.D Division, Sawai Madhopur and the applicant firm. A work order was thereafter issued on 24.09.2010 for execution of work of Rs.8,40,59,838/- in favour of the applicant firm. However, during the course of execution of contract dispute arose between the parties as according to the applicant on account of nonfulfillment of obligations on the part of the non-applicant department, the completion of work was delayed by 466 days. Though, extension was granted, dispute with regard to bill arose because the contractor had submitted bill based on escalated prices in case of delay. As the claim for escalated bill was not accepted by the respondent, despite various representations made by the applicant, a legal notice raising dispute and for appointment of arbitrator in terms of the arbitration clause was given on 15.03.2021. As respondent did not proceed to act in accordance with the terms of the arbitration clause towards appointment of arbitrator but only disputed the claim of the applicant, present application has been filed. 3. Learned counsel for the respondent referring to reply would submit that the claim of the applicant is not tenable in law. He would submit that the applicant did not complete the work as per the terms and conditions of the contract. Therefore, in these circumstances present is not a case of an arbitral dispute warranting appointment of an arbitrator. 4. Learned counsel for the applicant has placed on record copy of the agreement which contains an arbitration clause which reads as below:- '3. Arbitration (GCC Clause 25.3) The procedure for arbitration will be as follows: 25.3 (a) In case of Dispute or difference arising between the Employer and a domestic contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. Arbitration (GCC Clause 25.3) The procedure for arbitration will be as follows: 25.3 (a) In case of Dispute or difference arising between the Employer and a domestic contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. The parties shall make efforts to agree on a sole arbitrator and only if such an attempt does not succeed and the Arbitral Tribunal consisting of 3 arbitrators one each to be appointed by the Employer and the Contractor and the third Arbitrator to be chosen by the two Arbitrators so appointed by the Parties to act as Presiding Arbitrators shall be considered. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Council, Indian Roads Congress. (b) The Arbitral Tribunal shall consist of three Arbitrators one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties, and shall act a presiding arbitrator. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding arbitrator shall be appointed by the Council, Indian Roads Congress. (c) If one of the parties fails to appoint its arbitrator in pursuance of sub clause (a) and (b) above within 30 days after receipt of the notice of the appointment of its arbitrator by the other party, then the Council, Indian Roads Congress shall appoint the arbitrator. A certified copy of the order of the Council, Indian Roads Congress, making such an appointment shall be furnished to each of the parties. (d) Arbitration proceedings shall be held in India, and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English. (e) The decision of the majority of arbitrators shall be final and binding upon both parties. The cost and expenses of Arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. (e) The decision of the majority of arbitrators shall be final and binding upon both parties. The cost and expenses of Arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its proceedings as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself. (f) Performance under the contract shall continue during the arbitration proceedings and payments due to the contractor by the owners shall not be withheld, unless they are the subject matter of the arbitration proceedings.' 5. Present is not a case of such nature where it can be said that there is no prima facie case for appointment of arbitrator. Further the reply of the respondent clearly shows that the respondent had denied the claims of the applicant and it is not that the applicant's claim has been accepted nor present is a case where the applicant has received entire amount with full satisfaction. 6. A notice has also been given which is placed on record seeking appointment of an arbitrator. Therefore, in these circumstances a case is made out for appointment of arbitrator for adjudication of dispute between the parties through the process of arbitration. 7. For this purpose, parties agreed for appointment of Hon'ble Mr. Justice Dalip Singh (Retired) R/o House No. 48, Lane-1, Rathore Nagar, Queens Road, Vaishali Nagar, Jaipur as the sole arbitrator. 8. Accordingly, this Court appoints Hon'ble Mr. Justice Dalip Singh (Retired) as the sole arbitrator for adjudication of dispute between the parties. 9. The cost of the arbitration proceedings and fee shall be in accordance with the provisions contained in the Manual of Procedure for Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure for Alternative Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with 4th Schedule appended to the Arbitration and Conciliation Act, 1996. 10. A copy of this order shall be forwarded by the Registry to the sole arbitrator Hon'ble Mr. Justice Dalip Singh (Retired) and also by learned counsel for the applicant. 11. Application is, accordingly, disposed off.