Bombay High Court
R.K. Madhani And Company, Mumbai Thr. ... vs Government Of Maharashtra, Water ... on 28 February, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 mca240.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION (MCA) NO. 240/2017
R.K. Madhani & Company,
Through its Partner Shri Gyanchand R.
Madhani, R/o 127-136, Madhani Estate,
First Floor, 542, Senapati Bapat Marg,
Dadar (West), Mumbai-400 028
.... APPLICANT.
// VERSUS //
Government of Maharashtra,
Water Sector Improvement Project,
Through its Project Officer, Soil and
Water Management, Pilot Project,
Wainganga Nagar, Ajni, Nagpur
.... RESPONDENT
.
========================================
Shri S.P. Kshirsagar, Advocate for the applicant
Ms. S. Jachak, AGP for the respondent
========================================
CORAM : Z.A.HAQ, J.
DATED : FEBRUARY 28, 2018.
ORAL JUDGMENT :
Heard.
RULE. Rule made returnable forthwith.
2] This application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 is filed seeking appointment of an arbitrator to resolve ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 07:45:41 ::: Judgment 2 mca240.2017.odt the dispute raised by the applicant and for settling of claim of the applicant against the non-applicant.
3] The submission on behalf of the non-applicant is that the applicant has accepted the payment for the work done by him as per the contract in 2013 without any protest towards full and final settlement of all his claims. The learned AGP has pointed out that even after the applicant accepted the claim, he continued correspondence demanding additional amount and the Project Officer informed the applicant by the communication dated 09/09/2014 that nothing is receivable by the applicant after the payment was made to him in 2013, and if at all the applicant wanted to raise any dispute in the matter, as per clause 24 of the terms of agreement (as per the General Instructions to the Bidders and Invitation for Bids), the applicant should have requested for referring the matter to an adjudicator within 14 days of the intimation given to him by the communication dated 09/09/2014.
4] The applicant has not placed any material on record to show that the applicant had taken any steps as per clause 24 referred above. The notice issued by the applicant to the Project Officer calling upon him to refer the dispute to an arbitrator is dated 12/02/2016. Even clause 25.2 of the conditions of contract provides that if the contractor is not satisfied with the decision of the adjudicator, he may seek reference of dispute to an arbitrator ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 07:45:41 ::: Judgment 3 mca240.2017.odt within 28 days of the decision of the adjudicator. The advocate for the applicant has submitted that the stage as contemplated by clause 25.2 of the conditions of contract has not yet reached as the non-applicant has not referred the matter to an adjudicator. Though this submission made on behalf of the applicant appears to be correct at the first blush, fact remains that after the Project Officer informed the applicant by the communication dated 09/09/2014, that the applicant is not entitled for any further amount, the applicant has not taken any steps seeking reference of the matter to adjudicator. In the facts of the case, I am not satisfied that jurisdiction under Section 11 (6) of the Act of 1996 is required to be exercised.
The miscellaneous civil application is dismissed. In the circumstances, the parties to bear their own costs.
It is clarified that merits of the claim of the applicant are not adverted to.
JUDGE Ansari ::: Uploaded on - 04/04/2018 ::: Downloaded on - 21/05/2018 07:45:41 :::