Madhya Pradesh High Court
M/S Umashankar Mishra Through Surendra ... vs Union Of India on 26 November, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
AC No.102/2019 (M/s Ramji Das Dhal Construction Pvt. Ltd. vs.
Union of India
& AC No.5/2020 (M/s Umashankar Mishra vs. Union of India)
Indore: Dated:-26/11/2021:-
Shri Nilesh Agrawal, learned counsel for the applicants.
Shri Himanshu Joshi, learned Assistant Solicitor General for
the respondents.
Regard being had to the similitude of the matters, on the joint request of the parties, matters were analogously heard.
2) In these applications filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (Arbitration Act), the applicants have prayed for appointment of an arbitrator to resolve the dispute. The notices were issued in this matter way back on 07/01/2020. Till date, respondents have not filed the reply. On 25/10/2021, last opportunity was granted to file reply subject to payment of cost. Reply has not been filed till date although cost has been paid.
3) The learned counsel for the petitioners by taking this Court to Clause-7(b) and the communication dated 6 th July, 2018 (Annexure P/8) submits that there exists an arbitration clause, a live dispute and, therefore, appropriate directions may be issued for appointment of arbitrator.
4) The prayer is opposed by Shri Joshi, learned Asst. Solicitor General.
Clause - 7(b) reads as under:-
"(b) To execute all the works referred to in the said documents upon the terms and conditions contained/referred to therein and as detailed in the General Summary hereinafter and to carry out such deviations as may be ordered vide Condition 7 of IAFW-2249 up-to a maximum 10% and further agree to refer all disputes as required by Condition 70 of IAFW-2249 to the sole arbitration of a serving officer to be appointed by Engineer-in-Chief, Army HW New Delhi-
110011 or in the absence the officer officiating as Engineer- in-Chief or Director General of Works, if specifically 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE AC No.102/2019 (M/s Ramji Das Dhal Construction Pvt. Ltd. vs. Union of India & AC No.5/2020 (M/s Umashankar Mishra vs. Union of India) delegated in writing by Engineer-in-Chief, Army HQ, New Delhi-110011 whose decision shall be final, conclusive and binding."
5) The letter dated 6th July, 2018 (Annexure P/8) reads as under:-
Engineer-in-Chief Integrated HQ of MoD (Army) Kashmir House, Rajaji Marg, New Delhi-110011 Appointment of Arbitrator: CA NO CEJZ/MHOW/31 OF 2008-2009: PROVISION OF KOTES & QG SHELTERS AT CIRGS AND LIBRARY AT INF SCHOOL MHOW: RAMJI DAS DHAL CONSTRUCTION PVT LTD
1. Ref M/s Ramji Das Dhal Construction Pvt. Ltd. letter No.RDDCPL/ARB/Mhow/31/01 dated 14 Apr 2018.
2. Contractor vide his letter referred above has raised certain disputes in the subject contract, which can be resolved only by appointing a Arbitrator in terms of Genral Conditions-70 of AFW-2249 forming part of subject contract.
3. In view of above, particulars for appointment of Arbitrator along with Agreement for waiver of Section 12(5) of ACA 2015 and statement of case is forward herewith duly recommended by Accepting Officer for appointment of Arbitrator to adjudicate the dispute, raised by the contractor in terms of condition-70 of IAFW-2249.
(Praveen Dutt) SE (QS & C) Dir (Contracts) for Chief Engineer
6) A conjoint reading of the aforesaid makes it clear that applicant has made out a clear case for issuance of appropriate orders for appointment of arbitrator. There exists a live dispute which is duly recognized by Superintendent Engineer in his letter dated 06/07/2018 (Annexure P/8). Thus, I deem it proper to appoint an Arbitrator.
7) Accordingly, I deem it proper to provisionally appoint (1) Mr. B.M. Kohli (Retired) DG Pers (MES), R/o: 88, Ground Floor, GK2, New Delhi-110048 (2) Mr. O.P. Sharma, (Retired) Additional 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE AC No.102/2019 (M/s Ramji Das Dhal Construction Pvt. Ltd. vs. Union of India & AC No.5/2020 (M/s Umashankar Mishra vs. Union of India) Chief Engineer, R/o: B-60, Sector 41, Noida (U.P.) and (3) Mr. R.K. Jain (Retired) Director (Contracts) (MES), R/o: Flat No.204, Ivory Tower, South City I, Gurugram - 122001 as Arbitrators. The Registry shall obtain their disclosure under Section 11(8) of the Arbitration Act and apprise the Court about his disclosure on the next date of hearing.
List this matter on 13/12/2021.
(SUJOY PAUL) JUDGE soumya Digitally signed by SOUMYA RANJAN DALAI Date: 2021.11.29 17:40:22 +05'30'