Madhya Pradesh High Court
M/S G.S.Developers And Contractors ... vs M/S Divya Dev Developers Pvt.Ltd. on 10 January, 2017
AC-21-2016
(M/S G.S.DEVELOPERS AND CONTRACTORS PVT.LTD. THRU.GURMIT SINGH Vs M/S DIVYA
DEV DEVELOPERS PVT.LTD.)
10-01-2017
Shri Kunal Sachdeva, learned counsel for applicant.
Shri Akhil Porwal, learned counsel for respondents.
Heard finally with consent.
This arbitration case u/S.11 of the Arbitration and Conciliation Act, 1996 has been filed by the applicant for appointment of independent Arbitrator for resolving the dispute between the parties.
Though the reply has been filed by the respondents raising certain objections, but when the matter is taken up today, learned counsel for respondents has fairly stated that he is not opposing the prayer for appointment of the Arbitrator.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the applicant was awarded the contract for construction of multi story building for housing project at Apollo DB City Nipania, Indore. The agreement Annexure P/2 was executed between the parties which contains Clause No.4.41.c which is the arbitration Clause which reads as under:-
â4.41.c Subject to the aforesaid in the event of any dispute or difference between the parties hereto as to the construction or operation of this Contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the OWNER of any certificate to which the CONTRACTOR may claim to be entitled to or if the OWNER fails to make a decision within the aforesaid time, then and in any such case, but except in any of the exempted matters referred to in the above clause, the CONTRACTOR after 90 days of his presenting his final claim on the disputed matters, may demand in writing that the dispute or difference be referred to and settled by an arbitrator nominated jointly by the OWNER and the CONTRACTOR. The award of the Arbitrator shall be final and binding on both the parties. The provision as per the Arbitration and Conciliation Act 1996 shall apply to such arbitration. The arbitration venue shall be at Indore, Madhya Pradesh. The arbitrator shall determine the procedure for the arbitration. Costs of such arbitration shall be equally shared between the OWNER and the CONTRACTORâ.
Since the dispute had arisen between the parties in respect of the final bills, therefore, following the above procedure the notice dated 29/1/2015 was served by the petitioner on the respondents making a request for appointing the arbitrator for resolving the dispute. By the said notice the applicant had suggested the names of his own arbitrator, but the notice was not replied and the prayer made for appointment of the arbitrator was not accepted. Hence, the present arbitration case has been filed. Since the plea raised by the applicant for appointment of arbitrator has not been disputed and the arbitration clause exists in the contract Annexure P/2, therefore, having regard to the circumstances of the case, I am of the opinion that an independent arbitrator need to be appointed for resolving the dispute between the parties. Hence, I propose the name of Justice Deepak Verma, Retired Judge of Supreme Court as an Arbitrator. Let the declaration in terms of Section 11(8) and 12(1) of the amended Arbitration Act in the prescribed form as contained in 6th Schedule of the Act be obtained from the proposed Arbitrator by the Principal Registrar of this Court before the next date of hearing.
List on 27/2/2017.
(PRAKASH SHRIVASTAVA) JUDGE