Jammu & Kashmir High Court
M/S Sharma Construction Company ... vs Union Territory Of J&K And Others on 31 December, 2022
Sr. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Arb. P No. 26/2021
M/s Sharma Construction Company Engineers ....Petitioner(s)/Appellant(s)
and Contractors Akhnoor
Through :- Mr. R. K. Gupta, Senior Advocate with
Ms. Khyati Sharma, Advocate.
Mr. Udhay Bhasker, Advocate.
V/s
Union Territory of J&K and others ....Respondent(s)
Through :- Mr. Ravinder Gupta, AAG.
Mr. Raja Mohit Bucha, Advocate.
Coram: HON'BLE THE CHIEF JUSTICE (ACTING)
ORDER
31.12.2022
1. The petitioner has filed instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') seeking a direction for appointment of independent Arbitrator to consider his claims and to settle the disputes between the parties under arbitration agreement on the strength of averments made and ground taken in the petition.
2. Brief facts of the case are that the petitioner's bid was accepted and he was awarded the contract work for construction of proposed Mini Secretariat Building (G+2) RCC Column Framed Structure Block Akhnoor, District Jammu. Also, agreement executed between the petitioner firm and Executive Engineer, PWD(R&B) Construction Division No.III, Jammu. It is averred in the petition that despite the hurdles being created both in terms of supply materials as well as on account of non-release of timely payments of running bills because of non availability of the funds, the petitioner firm was able to complete the contract 2 Arb P No.26/2021 work in the shortest possible time. It is also averred that part payment has been made to the petitioner but the balance payment has not been paid to it till date. It is further averred that non payment of balance amount constrained the petitioner to file a writ petition OWP No.1609/2016 in which the court vide order dated 03.02.2017, disposed of the writ petition by observing that the respondents had not disputed the claim of the petitioner and a direction was given to respondent no.1 to finally settle the amount at the earliest along with interest for the work completed by the petitioner.
3. Learned counsel for the petitioner submitted that despite the directions issued by the court in OWP No. 1609/2016 dated 03.02.2017, the respondents have not made full and final payment to the petitioner along with interest.
4. The petitioner has annexed Annexure-XI dated 13.07.2020 which is a communication addressed by Executive Engineer, PWD(R&B), Const. Div. No.III, Jammu to the Superintending Engineer, PWD(R&B),Jammu/Kathua Circle, Jammu, acknowledging the balance amount of the petitioner along with interest.
5. The petitioner vide communication dated 01.09.2020 addressed to the Chief Engineer, PWD(R&B) Deptt. Jammu has requested for the appointment of arbitrator if in case his dues are not paid within thirty days of the issue of this communication.
6. It is the grievance of the petitioner that despite the court direction in OWP No. 1609/2016 and the admission of the respondents in communication dated 13.07.2020 in respect of liability on the part of the respondents; and also despite request of the petitioner vide communication dated 01.09.2020 to pay the dues of the petitioner, the petitioner is not being paid full and final, nor any independent arbitrator has been appointed till date. 3 Arb P No.26/2021
7. Objections on behalf of the respondents have been filed. The relevant paras 10 and 11 are reproduced hereinunder:
10. That in reply to the contents of Para No.10, it is respectfully submitted that the contents of Para are replied in the manner that the payment was released as and when the funds were made available. Moreover, for the pending claims a letter has already been written to Revenue Authorities.
11-15 That in reply to the contents of Para No.11 to 15, it is respectfully submitted that the contents of Para are admitted to the extent that an amount of Rs.43,25,470/- is due to the contractor. Accordingly, a letter had already been sent to the Revenue Department for arrangement of funds. Whenever funds will be available at once payment will be made to the contractor. Therefore, there is no need to appointment of an independent arbitrator.
8. It is further contended by the petitioner that an amendment has been carried out in Section 12 of the Act whereby it is provided that any person who is connected in any manner with any of the parties is ineligible to be appointed as an arbitrator.
9. Page-26 of the petition contains arbitration clause which reads as:
"In case of any dispute between the contractor and department whatsoever the case shall be referred to the Superintendent Engineer, PWD, Jammu. The Superintending Engineer on receipt of such reference from either party shall function as arbitrator and his decision as arbitrator shall be binding on both the parties.
10. Learned Senior counsel Mr. R. K. Gupta has produced a communication dated 24.09.2021 issued by the Chief Engineer, PW(R&B) Department, Jammu to AAG who is contesting the case in which list of retired Chief Engineers are proposed for appointment of Arbitrators.
11. Mr. R. K. Gupta, learned Sr. counsel submits that he has no objection in case name figuring at serial no.1 of the communication dated 24.09.2021 namely Er. Abdul Hamid Sheikh is appointed as arbitrator.
10. Be that as it may, the petition is disposed of by appointing Mr. Abdul Rashid Sheikh as arbitrator who shall proceed in the matter in accordance with 4 Arb P No.26/2021 the provisions of the Act to make an award within the time provided in the Act itself, after charging the prescribed fee along with incidental expenses to be shared by the parties.
11. The Petition stands disposed of accordingly.
12. Registry shall communicate a copy of this order to learned Arbitrator through Mobile No.9419045689 or via e-mail as well as ordinary mode.
) (Tashi Rabstan)
Chief Justice (Acting)
Jammu:
31.12.2022
Raj Kumar