Himachal Pradesh High Court
Ashok Thakur vs State Of H.P. & Another on 21 July, 2023
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Arb. Case No.60 of 2023
.
Decided on: 21.07.2023
Ashok Thakur ...Applicant
Versus
State of H.P. & another ...Respondents
Coram
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
Whether approved for reporting?
For the applicant: Mr. Sumeet Raj Sharma, Advocate.
For the respondents: Mr. Pranay Pratap Singh, Additional
Advocate General.
M.S. Ramachandra Rao, Chief Justice (Oral)
This application is filed seeking appointment of Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, "the Act").
2. The applicant had been awarded works of the following description:
"C/o. Link Road from veterinary Hospital to Amroh via Fakruhi Hanoh Garli Bunga Road Km 0/0 to 2/420 (SH: Formation cutting, ROFD for 5/7 meter wise road CD, soling, wearing and tarring drain and parapets in between 0/0 to 2/420) under NABARD RIDF-XX, Agreement No. 361 of 2015-
16."::: Downloaded on - 21/07/2023 20:37:44 :::CIS 2
vide award letter dt. 16th February, 2016 for an amount of Rs.1,92,34,467/-
.
3. Thereafter, the parties entered into an agreement No.361 of 2015-16. Clause 25 of the Agreement contains an arbitration Clause to refer the dispute between the parties for arbitration under the Act. According to the applicant, work under the above agreement was required to start from 02.03.2016 and to be completed till 01.03.2018, but clear site was not made available to the applicant due to objections by certain private land owners, trees were also not cleared and this delayed the commencement of work. According to the applicant, he is entitled to the following claims:-
"Claim No.1. Payment for work executed not paid. The petitioner had executed the work on available portions however the work executed has not been measured and not paid Rs 39,66,258/- against 11th R Bill and Rs. 6,59,450/- against 12th R Bill and withheld amounts for Rising Main Rs. 24,40,531/- and Rs.3 JAN 2023 6,62,355/- for pumping machinery. Claim No. 3 Damage for prolongation That work has been prolonged by on account of hindrances and reasons attributable to the department. The Petitioner is entitled to be compensation for the ::: Downloaded on - 21/07/2023 20:37:44 :::CIS 3 prolongation which is being claimed as per HUDSON Formula.
Claim No. 4. Interest:
.
The contractor is also entitled to claim interest on the delayed payment and other amount due to the contractor as the contractor has paid interest to the bank and the department is also liable to pay interest @9% for the payment found due to the contractor. Claim No. 5. Cost of Arbitration Rs. 1,00,000/-
That since the contractor has been forced to the arbitration, the contractor is entitled to claim cost of arbitration and also refund of any fee which shall be payable to the Ld. Arbitrator during the course of arbitration."
4. Vide Annexure P-3 notice dt. 16th April, 2022, the applicant demanded the Chief Engineer, Hamirpur Zone, HP PWD to appoint an Arbitrator in terms of Clause 25 for adjudication of his claims. However, the Superintending Engineer, Arbitration Circle, HP PWD, Solan, was appointed as an Arbitrator through order dt. 28th June, 2022, which according to the applicant was not communicated to him; and the applicant through Annexure P-4 letter dt. 29th November, 2022 informed the latter that his appointment is not in conformity with Section 12(1)(b) of the 5 th Schedule to the Act and it is not acceptable to him. The said ::: Downloaded on - 21/07/2023 20:37:44 :::CIS 4 Superintending Engineer, Arbitration Circle, HP PWD, Solan, then returned the reference through letter dt. 27th October, 2022.
.
5. In the reply filed by the respondents, the claims of the applicant are disputed. It is stated that in view of objections raised by the applicant to the appointment of the Superintending Engineer, Arbitration Circle, HP PWD, Solan as sole Arbitrator, the latter returned the matter to the Chief Engineer (HZ), HP PWD, Hamirpur and a letter was then addressed on 17.02.2023 to the applicant by the said Chief Engineer asking the applicant to submit panel of Arbitrators to his office for appointment.
6. The petitioner has, however, invoked the jurisdiction of this Court and filed the instant application on 13.01.2023 much before Annexure R-16 reply was issued by the Chief Engineer (HZ), HP PWD, Hamirpur.
7. Since the existence of dispute between the parties is clear, and since the agreement between them contains an arbitration Clause, and since notice dt. 16th April, 2002, had been issued by the applicant to the Chief Engineer, Hamirpur Zone, HP PWD, seeking appointment of an Arbitrator, and since the appointment of Superintending Engineer, Arbitration Circle, HP PWD, Solan, is not valid in view of Section 12(1)(a) of the Act, this application is ::: Downloaded on - 21/07/2023 20:37:44 :::CIS 5 allowed and Shri J.L. Gupta, District & Sessions Judge(retired) is appointed as Arbitrator to adjudicate the dispute between the .
parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.
8. On his giving consent to arbitrate the dispute between the parties as an Arbitrator, Shri J.L. Gupta, District & Sessions Judge(retired), shall enter into reference, and shall pass an award in accordance with law.
9. Copy of this order be forwarded to the learned counsel for the parties as also to the learned Arbitrator. The learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4th Schedule appended to the Act.
10. The application is disposed of accordingly.
( M.S. Ramachandra Rao ) Chief Justice July 21, 2023 (vt) ::: Downloaded on - 21/07/2023 20:37:44 :::CIS