Himachal Pradesh High Court
Sh. Manish Kaushal vs The Divisional Engineer (A.H.Q) on 8 March, 2017
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Arbitration Case No. 115 of 2016
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Date of decision: March 8, 2017.
Sh. Manish Kaushal ......Petitioner.
Versus
The Divisional Engineer (A.H.Q) . ......Respondent.
of
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Sumeet Raj Sharma, Advocate.
For the respondent : Mr. Adarsh Sharma, Advocate.
Dharam Chand Chaudhary, J. (Oral)
The petitioner is a Government Contractor. The Bharat Sanchar Nigam Limited (BSNL) through its Divisional Engineer, respondent herein, has awarded the execution of work namely OAN-Army OFC Shimla Section-5 to him. The arbitration agreement Annexure P-1 was executed between the parties on standard format. The work was to be executed in terms of the agreement Annexure P-1. The petitioner-Contractor could not execute the work within the stipulated period for want of site which was not made available to him by the respondent 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:59:33 :::HCHP 2establishment well in time. On account of which certain disputes have arisen between the parties. In terms of clause .
17.1 of the contract agreement, it was mutually agreed to refer all such disputes to the Arbitrator who was to be appointed by the Chief General Manager Telecom (NTPC), New Delhi. The petitioner-Contractor has served the said authority with legal of notice Annexure P-2 and requested for appointment of Arbitrator but of no avail because the Arbitrator was not appointed within rt the stipulated period. Now this petition has been filed for appointment of Arbitrator.
2. Mr. Adarsh Sharma, Advocate appearing on behalf of the respondent has placed on record the written instructions.
The respondent thereby has opted for the appointment of its Chief General Manager (NTPC, New Delhi) to be appointed as Arbitrator in this case. However, in view of the provisions contained under Sub Section (5) of Section 12 read with schedule VII to the Arbitration and Conciliation Act, no person who happens to be an employee or in any manner concerned with the business of the respondent can be appointed as Arbitrator.
Therefore, the Chief General Manager of respondent Nigam cannot be appointed as Arbitrator to adjudicate the disputes having arisen during the execution of the work in question.
3. In the nature of the disputes involved and the awarded work was to be executed in Shimla as well as the duties ::: Downloaded on - 15/04/2017 21:59:33 :::HCHP 3 of an Arbitrator are quasi judicial, I appoint Mr. Debinder Ghosh, Advocate as Arbitrator to adjudicate the disputes between the .
parties in this case. Learned Arbitrator to enter upon the reference within a week from the date he receives an authenticated copy of this judgment to be supplied by the Registry to him. It is expected from the Arbitrator that he will of conclude the proceedings at the earliest, preferably within six months from the date he enters upon the reference.
4. rt The fee payable to the Arbitrator shall be as per the provisions contained under Section 11 read with Schedule V to the Act which he shall determine at his own. The fee payable to the Arbitrator shall be shared equally by the parties on both sides. `30,000/- shall be paid to the Arbitrator in advance within one week after he enters upon the reference and the remaining well before the pronouncement of award.
5. The petition is accordingly allowed and stands disposed of.
(Dharam Chand Chaudhary), Judge.
March 8, 2017, (vs) ::: Downloaded on - 15/04/2017 21:59:33 :::HCHP