Tilak Raj vs Chief Engineer (Mz) And Another on 2 August, 2019

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Himachal Pradesh High Court

Tilak Raj vs Chief Engineer (Mz) And Another on 2 August, 2019

Bench: V. Ramasubramanian

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                 Arb. Cases No. 26 & 27 of 2018




                                                                               .
                                                         Decided on: 02.08.2019





    Arb. Cases No. 26 & 27 of 2018





    Tilak Raj                                                               ...Petitioner(s)

                                              Versus

    Chief Engineer (MZ) and another                                         ...Respondents

    Coram


    The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice.

    Whether approved for reporting?1

    For the petitioner(s):               Mr. R.L. Chaudhary, Advocate.

    For the respondents:                 Mr. Ashok Sharma, Advocate General,



                                         with Mr. Adarsh K. Sharma,
                                         Additional Advocate General.




    V. Ramasubramanian, Chief Justice. (Oral)

These applications are filed by the Contractor under Section 11 (6) of the Arbitration and Conciliation Act, 1996, praying for the appointment of an Arbitrator for the adjudication of the disputes that have arisen between him and the respondents under two different Agreements, one bearing Agreement No. 99 of 20062007 dated 30.03.2007 1 Whether reporters of the local papers may be allowed to see the judgment?

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and another bearing Agreement No. 38 of 20072008 dated 07.05.2007.

2. Heard Mr. R.L. Chaudhary, learned counsel appearing for the petitioner and Mr. Adarsh K. Sharma, learned Additional Advocate General appearing for the respondents.

3. The fact that the petitioner was entrusted with two different contracts, one for the upgradation of Tandi, Wari, Lapshak and Yangrang Road, for a total value of ₹ 1,50,20,346/ and another for the upgradation of Miyar Valley Road, under PMGSYPhaseVI Additional Package, for a value of ₹ 2,00,97,658/, is not denied by the respondents. According to the petitioner, he could not complete the execution of both the aforesaid contracts, within the stipulated period, on account of the default committed by the second respondent. The petitioner claims that due to the delay caused by the respondents, the petitioner suffered losses.

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4. Therefore, the petitioner submitted a claim on 16.10.2015 in respect of both the contracts. It appears that .

the first respondent issued a letter dated 27.04.2016 appointing the Superintending Engineer, Arbitration Circle of HPPWD Solan, to arbitrate the disputes. But the petitioner submitted a reply dated 02.05.2016 objecting to the choice of the Arbitrator, in view of the amended provisions of Section 12 of the Act.

r The Superintending Engineer also stated to have written a letter dated 04.05.2016 pointing out his inability to arbitrate, in the light of the amended Section 12. Since there was silence on the part of the respondents thereafter, the petitioner has come up with the above applications.

5. The respondents have filed a reply contending inter alia that the execution of the contracts was completed way back in the year 2009/2010 and that the final payments were released, in respect of one contract, on 26.07.2016 and in respect of another contract in the year 2010; that after a ::: Downloaded on - 29/09/2019 01:42:56 :::HCHP 4 long gap, the petitioner came with certain claims in the year 20152016 and also proposed the name of an Advocate as an .

Arbitrator; that the respondents constituted a Committee to settle the disputes, under the Chairmanship of the Chief Engineer; that the petitioner did not participate in the proceedings of the Committee; that therefore in exercise of the power conferred by Clause 25 of the Agreement, the Superintending Engineer, Arbitration Circle of HPPWD Solan was appointed as a sole Arbitrator; that the appointment of an inhouse employee was objected to by the petitioner; that thereafter the petitioner filed Arbitration Case Nos. 75 and 77 of 2016, in which the Superintending Engineer of the First Circle, HPPWD was appointed as Arbitrator; that the Arbitrator entered reference in October 2016, by the proceedings went on till March 2018; that the mandate of the Arbitrator thereafter got terminated and the Arbitrator finally closed the proceedings on 27.04.2018 and that therefore, no Arbitrator can now be appointed.

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6. From the reply filed by the respondents, it is clear (i) that there is no dispute about the existence of a .

valid Arbitration Agreement and (ii) that there is no dispute about the existence of a dispute between the parties. The fact that a Superintending Engineer was appointed earlier and that his mandate got terminated due to efflux of time, cannot be a ground for rejecting an application under Section 11 (6) of the Act. The learned Additional Advocate General harped upon an order dated 27.04.2018, but the same was not an order passed by any Court. The termination of the mandate of the Superintending Engineer appointed earlier, on account of his failure to pass an Award within the time stipulated, would only strengthen the claim of the petitioner for the appointment of an Arbitrator.

7. In view of the above, both the applications deserve to be allowed. That would take me to the next question as to who should be appointed as Arbitrator.

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8. The total value of the contracts in both cases is about ₹ 3 crores. The claim that the petitioner seeks to .

make in one case is about ₹ 1.50 crores and the claim that he has indicated in another case is for about ₹ 1.30 crores.

Therefore, taking into account the value of the claim, I hereby appoint Shri L.R. Sharma, retired District & Sessions Judge, as Arbitrator in respect of both the disputes.

Aforesaid Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open for the learned Arbitrator to determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act.

9. Needless to say, award shall be made strictly as per provisions contained in Arbitration and Conciliation Act.

A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this Court within ::: Downloaded on - 29/09/2019 01:42:56 :::HCHP 7 one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period.

10. Both the applications are disposed of.






                                            (V. Ramasubramanian)
                                                  Chief Justice
    August 02, 2019
          ( rajni )




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