Rajasthan High Court - Jodhpur
Bharat Construction Company vs Chief Engineer I.G.N.P.Bikaner & Anr on 3 January, 2014
Author: Govind Mathur
Bench: Govind Mathur
-1-
SB Civil Misc. Arbitration Application No.88/2012
Bharat Construction Company
v.
The Chief Engineer, IGNP, Bikaner & Anr.
Date of Order :: 3rd January, 2014
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. DLR Vyas, for the petitioner-applicant.
Mr. K.R.Saharan, Deputy Government Counsel.
....
This application is preferred as per provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as
"the Act of 1996") for appointment of an independent arbitrator.
Briefly stated, facts of the case are that under the work order dated 20.2.1999 the Executive Engineer, Indira Gandhi Nahar Pariyojna, 18th Division, Bikaner awarded the work of construction of Pumping Station Vth at K.M. 29.100 of Pannalal Barupal Lift Canal. An agreement for execution of the work given was executed and clause 23 of that pertains to resolution of the disputes by mode of arbitration through a standing committee. As per the petitioner, after execution of work final payment of all pending bills was not made and that caused a huge loss to the company. A notice dated 24.7.2012 was given to refer -2- the dispute existing between the parties to the standing committee as per provisions of clause 23 of the agreement. On being failed to get the matter referred to the standing committee, this application was submitted on 21.9.2012.
It is submitted by counsel for the
petitioner that despite having no just reason the
matter was not referred to the standing committee,
thus, this Court should now appoint an independent
arbitrator.
Per contra, as per the respondents, in
response to the notice dated 24.7.2012 the Chief
Engineer, Indira Gandhi Nahar Pariyojna, Bikaner by communication dated 14.9.2012 made a request to the Chairman, Indira Gandhi Nahar Board, Jaipur to refer the dispute to the standing committee. This request was made in pursuant to the communication dated 22.8.2012 whereby the Executive Engineer, 18th Division, Indira Gandhi Nahar Pariyojna, Bikaner forwarded case of the petitioner for reference to the standing committee. Ultimately, under communication dated 26.10.2012, it was communicated to the petitioner that the dispute has already been referred to the standing committee and the petitioner was required to join the arbitration proceedings in the meeting hall of Indira Gandhi Nahar Mandal on 6.11.2012. The petitioner did not join the meeting, -3- thus, the same was adjourned. According to learned counsel for the respondents after making reference to the standing committee as per clause 23, this application has become infructuous.
Heard counsel for the parties.
Clause 23 of the agreement provides for arbitration proceedings and a notice in this regard was given by the petitioner on 24.7.2012. The respondents was supposed to refer the dispute to the standing committee within a period of 30 days, however, no action within the period prescribed was taken and the reference was made in the month of October, 2012. Suffice to mention here that the petitioner prior to the reference of the dispute to the standing committee preferred this application as per Section 11(6) of the Act of 1996. This fact was also communicated to the respondents by the petitioner and the notice issued by this Court on 5.10.2012 also came to be served upon the respondents on 1.11.2012. After lapse of 30 days from the date of notice, specially when the application under Section 11(6) of the Act of 1996 was already filed by the petitioner, no reason was there for making reference as per clause
23. As a matter of fact the respondents after lapse of 30 days from the date of receiving the notice for making reference of the dispute to the standing committee become functus officio, specially looking to -4- the fact that this application was already filed before this Court and notice of that too was served.
Having considered this factual background, I deem it appropriate to accept this application for appointment of an independent arbitrator. With consent of the parties Shri Mandal Prasad Bohra, retired District Judge, resident of C/22, Krishna Nagar, New Pali Road, Jodhpur, is appointed as sole arbitrator to adjudicate and resolve all the disputes referred in notice dated 24.7.2012. The arbitrator appointed shall be entitled to have fee, remuneration and other perks in accordance with the alternative dispute resolution 2009 prescribed by the Rajasthan High Court.
Registry is directed to send a copy of this order to Shri Mandal Prasad Bohra at his residential address forthwith.
( GOVIND MATHUR ),J.
kkm/ps.