Punjab-Haryana High Court
The Hisar Model Town Azad Cooperative ... vs The State Of Haryana And Another on 7 January, 2010
Author: Mukul Mudgal
Bench: Mukul Mudgal
PUNJAB AND HARYANA HIGH COURT, CHANDIGARH.
***
Arbitration Case No. 23 of 2007 Date of decision: 7.01.2010.
*** The Hisar Model Town Azad Cooperative L&C Society Limited, House No.11, Town Enclave, Delhi Road, Hisar through its representative Shri Rajesh Gulia.
Versus The State of Haryana and another.
*** Coram: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice.
*** Present: Shri Vikram Dhakla, Advocate, for the petitioner.
Shri B.S.Rana, Addl: A.G.Haryana, for the respondents.
*** Mukul Mudgal, CJ (oral) The petitioner by way of this application filed under Sections 11 and 12 of the Arbitration and Conciliation Act, 1996 has prayed for appointment of a Sole Arbitrator to adjudicate the dispute between the petitioner and the respondents with regard to the work of SR Uklana Uchana Road Via Litani in District Hisar.
Upon notice of motion, the respondents put in appearance and filed reply controverting the allegations made in the petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner placed reliance upon Arbitration clause 25A-(1) and 9(e), which is reproduced as under:-
'25A-(1) ''If any disputes or difference of any kind whatsoever shall arise between the Governor of Haryana/his authorized agents and the contractor in connection with or arising out of the contract of the execution of the work that is (1) whether before its commencement or during the progress of the work or after its completion (ii) and whether before or after the termination abandonment of branch of the contract, it shall in the first instance be referred to for being settled by the Executive Engineer-in Charge of the work at the time and he shall within a period of sixty days after being requested in writing by the contractor to do so, convey his decision to the contractor and subject to arbitration as hereinafter provided such decision in respect of every matter so referred shall be final and binding upon the contractor in case the work is already in progress, the contractor will proceed with the execution of the work on receipt of the decision by the Executive Engineer-in-Charge as aforesaid with all due diligence whether he or the Governor of Haryana/his authorised agent requires arbitration as hereinafter provided or not if the Executive Engineer-in-Charge of the work has conveyed his decision to the contractor and no claim to arbitration has been filed with him by the contractor within a period of sixty days from the receipt of letter communicating the decision the said decision shall be final and binding upon the contractor and will not be a subject matter of arbitration at all if the -3- Executive Engineer-in-Charge of the work fails to convey his decision within a period of sixty days after being requested as aforesaid the contractor may within further sixty days, of the expiry of first sixty days from the date on which request has been made to the Executive Engineer-in-Charge request the Engineer-in- Chief, that the matter in dispute be referred to arbitration, as hereinafter provided''. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x''.
Section 9.- Neither party shall be entitled to bring a claim for arbitration if the appointment of such arbitrator has not applied within a period of six months:-
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x''. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x''.
(e) of receiving an intimation from the Executive Engineer-in-charge of the work that final payment due to or recovery from the contractor had been determined which he may acknowledge and/or receive''.
A conjoint reading of Sections 25 A-(i) along with sub-section 9 (e) of the agreement indicates that the claim for appointment of an Arbitrator can only be brought within a period of six months of receiving an intimation from the Executive Engineer-in-Charge of the work to the effect that final payment due to or recoverable from the contractor had been determined which he may acknowledge and/or receive.
It is not disputed that after the receipt of final payment, the claim for appointment of Sole Arbitrator can not be raised beyond the -4- period of six months. In the instant case, the claim has been raised after a lapse of almost 2-1/2 years. In this view of the matter, the petition for appointment of an Arbitrator is not well founded. However, it is left open for the petitioner to avail the alternate remedy before the appropriate forum, if any, available in the law.
With the above observation, the petition is dismissed. No order as to costs.
January 07, 2010 (Mukul Mudgal) Malik Chief Justice