Himachal Pradesh High Court
Atul Kuthiala vs Dr. Naresh Sharma & Anr on 14 September, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Arb. Case No. 21 of 2015.
.
Date of decision: September 14, 2015.
Atul Kuthiala. ......... Petitioner.
Versus
Dr. Naresh Sharma & anr. ......... Respondents.
of
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt
Whether approved for reporting?1
For the Petitioner : Mr. Suneet Goel, Advocate with Mr.
Vivek Negi, Advocate.
For the respondents : Mr. Neel Kamal Sharma, Advocate.
Dharam Chand Chaudhary, J. (Oral)
The petitioner is a Contractor. Pursuant to the tender invited by respondents herein for construction of hospital building at Ghumarwin in District Bilaspur, the petitioner-firm has submitted its tender. The same was accepted and the work of construction of hospital building awarded to it for a sum of `1,51,13,222.74/-. The agreement Annexure C-2 was executed between the parties. The petitioner-firm allegedly completed the construction work in the month of December 2008 and 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 18:55:29 :::HCHP 2submitted its bills for payment to the respondents. The respondents, however, failed to make the payments without any rhyme and reason.
.
The petitioner-firm, therefore, has raised dispute and served the respondents with notice Annexure C-3 for appointment of Arbitrator in terms of the contract-agreement. The notice though was replied vide of Annexure C-4, they, however, refused to appoint the Arbitrator. This has led in issuance of another notice Annexure C-5 through registered AD post.
rt The notices, however, were received undelivered as both respondents were not available in the given address having left India for abroad. Hence, this petition for appointment of Arbitrator by this Court.
2. In reply, filed on behalf of respondent No.1 and adopted on behalf of respondent No. 2 also, there is no dispute qua the tender submitted by the petitioner-firm for construction of the building of hospital at Ghumarwin and award of work to the petitioner-firm. It is, however, denied that the work was completed by the petitioner-firm and rather the respondents were compelled to get the work awarded and completed through some other person and the quantity of work explained has also been disputed. The execution of the agreement Annexure C-2 has also not been disputed.
::: Downloaded on - 15/04/2017 18:55:29 :::HCHP 33. In view of the contents of the petition and reply thereto filed on behalf of the respondents, the petitioner-firm has constructed the .
building of the hospital at the instance of the respondents. The work was complete or not on the spot is a question to be agitated before competent authority because Clause 8 (c)(1) of contract-agreement provides that in of the event of dispute, if arisen between the parties, the same is to be decided by the sole Arbitration of two Arbitrators to be appointed by rt each party. The given facts and circumstances constitute the dispute within the meaning of clause 8(c)(1) of the agreement supra and the same has to be adjudicated in arbitral proceedings. Learned counsel on both sides are in agreement for appointment of a single Arbitrator to adjudicate the dispute having arisen in this matter. Since the parties failed to appoint the Arbitrator with mutual consent and as the respondents even failed to appoint the Arbitrator on receipt of notice Annexure C-3, therefore, the Arbitrator has now to be appointed by this Court.
4. The petition is accordingly allowed. Consequently, I appoint Mr. Pushpinder Jaswal, Advocate (Learned Deputy Advocate General for the State of H.P.) as Arbitrator in this case. Learned Arbitrator to enter upon the reference within one week from the date he ::: Downloaded on - 15/04/2017 18:55:29 :::HCHP 4 receive an authenticated copy of this judgment from the Registry of this Court. It is expected from him that the arbitral proceedings will be .
expedited within six months from the date he enter upon the reference.
The fee of the Arbitrator is fixed as `50,000/- inclusive of secretarial charges, to be shared by the parties on both sides equally. Out of the fee of 50% thereof to be paid to the learned Arbitrator within a week from the date he enters upon the reference and the remaining 50% well before the rt announcement of the award.
5. The petition is accordingly disposed of.
(Dharam Chand Chaudhary), Judge.
September 14, 2015, (vs) ::: Downloaded on - 15/04/2017 18:55:29 :::HCHP