Madhya Pradesh High Court
M/S Progressive Engineering Co A ... vs Bridge And Roof Company ( India) Limited ... on 27 May, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 27 th OF MAY, 2024
ARBITRATION CASE No. 6 of 2024
BETWEEN:-
M/S PROGRESSIVE ENGINEERING CO A PARTNERSHP
FIRM THROUGH ITS PARTNER SHRI ANGAD DEEP
SINGH S/O PAVNEET SINGH AGED ABOUT 33 YEARS
HAVING ITS OFFICE AT FLAT NO 7 VHB COLONY
OPPOSITY RTO AMARAVATI ROAD GIRIPETH NAGPUR
MAHARASHTRA 440010 AND R/O 201 ISHAAN
APARTMENT ANAND SAI MARG 524 CLARKE TOWN
BEZONBAGH NAGPUR MAHARAHSTAR
(MAHARASHTRA)
.....PETITIONER
(BY SHRI ARJUN BAJPAI - ADVOCATE)
AND
BRIDGE AND ROOF COMPANY ( INDIA) LIMITED A
GOVERNMENT OF INDIA ENTERPRISES DIVISIONAL
ENGINEER HAVIT SITE OFFICE AT NTPC GADARWARD
STPP SITE VILLAGE CHICHLI PO GADARWARD
DISTRICT NARSINGHPUR MP 48551 ANDHEAD OFFICE
AT 5TH FLOOR KANKARIA CENTRE 2/1 RUSSEL STREET
KOLKATTA (WEST BENGAL)
.....RESPONDENTS
(NONE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Application has filed this application under Section 11 (6) of Arbitration and Conciliation Act, 1996 for appointment of Arbitrator.
2 . Counsel appearing for applicant submitted that there is Arbitration agreement between the parties and same is provided in Arbitration Clause-47 in Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 2 General Conditions of Contract, which is binding and applicable to parties.
3. Applicant is a partnership firm and working in Construction Industry. On 04.04.2022, applicant sent mail to non-applicant expressing his intention to carry out work of manufacturing, supply, Laying and Fixing of Paver and Kerb Blocks at the NTPC, Gadarwar Project in Narsinghpur. Non-applicant issued letter of intent dated 05.04.2022 and 07.04.2022 in favour of applicant. Total contract value was Rs.1,32,00,000/- (Rupees One Crore & Thirty Two Lacs Only) exclusive of the GST amount. Applicant accepted terms set forth in the letter of intent (LOI). Acceptance of applicant established contractual relationship between applicant and non-applicant. It is submitted that non-
applicant did not cooperate and fulfill its reciprocal obligations arising out of the contract, despite repeated requests by applicant. Non-applicant failed to provide raw material on site on time and there was inadequate stacking and dumping space by non-applicant. Timely payment of the running bills were also not paid. There was delay in project and non-applicant initiated fresh offline tenders for the same project without formally terminating or revoking the contract with applicant. Breach by non-applicant caused financial loss to applicant. In these circumstances, applicant invoked Arbitration Clause-47 of General Conditions of Contract by issuing notice on 23.09.2023 to non- applicant. Non-applicant did not respond to the request and, therefore, this application under Section 11(6) of Arbitration and Conciliation Act, 1996 is filed for appointment of Arbitrator.
4. None appears for non-applicant despite service of notice. Notices were issued to non-applicant on 09.02.2024. Notice was found to be served on non-applicant on 07.05.2024. On said date, nobody appears for non-applicant and further time was granted to non-applicant so that they can file their Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 3 vakalatnama and appear in the case. Matter was adjourned for a period of four weeks. Case is against listed on 27.05.2024 and none appears for respondent. Since nobody is appearing for non-applicant, therefore Court is proceeding exparte against non-applicant
5. Heard learned counsel for parties.
6. There is arbitration agreement between parties, which is quoted as under :
"47. ARBITRATION B&R confidently feel that there shall not arise any disputes or differences during execution and completion of the order/contract by the contractor(s).
However, in the event of any dispute arising between the Company and the contractor (hereinafter referred individually as "the party" and collectively as "the parties"), concerning the interpretation of any terms and conditions of the Contract and / or contractual obligations/performance/ liabilities/ responsibilities of the parties to the said Contract, the disputing Party shall refer the matter to the other Party for holding a mutual discussion for resolving the dispute. In case the parties fail to arrive to any settlement through mutual discussion, either of the parties may avail the following remedies :
Resolution of Disputes through Conciliation :-
i) Any party may refer the dispute for conciliation under Rules of Conciliation and Arbitration under SCOPE Forum of Conciliation and Arbitration (SFCA) 2003 And amendments made thereto from time to time (hereinafter referred as "the rules") by making application to the Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 4 Secretariat of the SCOPE forum.
The Party initiating conciliation shall send to the other party and written invitation to conciliate under the Rules, briefly identifying the subject matter of the dispute.
The settlement so rendered between the parties in pursuance thereof shall be final and binding on the parties.
If the other party rejects the invitation, there will be no conciliation proceedings at all.
Resolution of dispute through arbitration :
ii) In case the dispute is settled by conciliation within 30 days of the invitation of conciliation or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by Arbitration, in accordance with the Rules of Arbitration of SCOPE Forum of Conciliation and Arbitration 2003 and amendments made thereto from time to time.
The entire proceedings of Arbitration shall be governed under the Arbitration and Conciliation Act, 1996.
The venue of Arbitration shall be mutually decided by the parties. In case the parties do not agree for resolution of dispute through Conciliation and Arbitration by above-mentioned SCOPE Forum, the disputing party shall opt for stipulated rules laid down under the Arbitration and Conciliation Act, 1996.
The Contract and the parties therein shall be governed under the jurisdiction of Calcutta High Court.
In the event of any dispute of difference relating to the interpretation and application of the provisions of the contracts and Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 5 commercial agreements (except Income Tax, Customs, Excise Duty and also concerning Railways) between company (B&R) and any other Public Sector Undertaking/Government Department/ Bank/ Port Trust etc., such dispute or difference shall be referred by either party for Arbitration to the sole Arbitrator in the Department of Public Enterprises to be nominated by the Secretary of the Government of India in-charge of the Department of Public Enterprises. The Arbitration and Conciliation Act 1996 shall not be applicable to arbitration under this clause. The award of the Arbitrator shall be binding upon the parties to the dispute, provided, however, any party aggrieved by such award may take a further reference for setting aside or revision of the award to the Law Secretary Department of Legal Affairs, Ministry of law & Justice, Government of India.
Upon such reference the dispute shall be decided by the Law Secretary or the Special Secretary/Additional Secretary, when so authorized by the Law Secretary, whose decision shall bind the parties finally and conclusively. The parties to the dispute will share equally the cost of arbitration as intimated by the Arbitrator.
Subject to any amendment that may be carried out by the Government of India from time to time, the procedure to be followed in the arbitration shall be as mentioned above, which is as per O.M.No.4(1)/2011-DPE(PMA)GL dated 12.06.2013 of Department of Public Enterprises, Ministry of Heavy Industries and Public Enterprises, Govt. of India or any modification issued in this regard." 7 . Procedure mentioned in Clause-47(i) was followed. There was no Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 6 conciliation between parties, therefore, notice was issued under Arbitration and Conciliation Act. Respondent as per the pleadings made in application did not respond to request for conciliation under Clause-47(i), thereafter, applicant filed an application under Arbitration Clause-47 of General Conditions of Contract (GCC). Non-applicant refused to participate in arbitration proceedings and non- applicant has turned down the name of Arbitrator, which was proposed by applicant. As per procedure for arbitration mentioned in Clause-47(ii) of General Conditions of Contract, parties shall be governed under the jurisdiction at Calcutta High Court. According to Arbitration Agreement, venue can be decided by the parties and place of arbitration will be within the jurisdiction of Calcutta High Court. Arbitration Agreement further reads that in case of disputes regarding interpretation and application of the provisions of the contracts and commercial agreements between company and any other Public Sector Undertaking/Government Department/ Bank/ Port Trust etc., such dispute or difference shall be referred by either party for Arbitration to the sole Arbitrator in the Department of Public Enterprises to be nominated by the Secretary of the Government of India in-charge of the Department of Public Enterprises and Arbitration and Conciliation Act, 1996 shall not be made applicable to Arbitration under this clause.
8. On going through the Arbitration Agreement between the parties, it appears that both parties have agreed that arbitration will not be under Arbitration and Conciliation Act, 1996 but sole Arbitrator is to be nominated by Secretary, Government of India in-charge of Department of Public Enterprises. In view of said agreement between parties, applicant is directed to file his application and claims before Secretary, Government of India in-charge of Department of Public Enterprises. On receiving such application, Secretary, Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49 7 Government of India in-charge of Department of Public Enterprises shall appoint sole Arbitrator in accordance with Arbitration Agreement between parties as per Clause-47 of General Conditions of Contract (GCC).
9. With aforesaid direction, application stands disposed off.
10. Certified copy as per rules.
(VISHAL DHAGAT) JUDGE nd Signature Not Verified Signed by: NEETI TIWARI Signing time: 30-05-2024 13:28:49