Himachal Pradesh High Court
R.K. Seth vs State Of Himachal Pradesh on 27 April, 2022
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 27th DAY OF APRIL, 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
ARBITRATION CASE No.90 of 2021
Between:-
M/S ELECMECH ENGINEERS,
GOVT. CONTRACTOR,
OAKWOOD PLACE, JAHKHOO,
SHIMLA H.P. THROUGH SH
RAKESH SETH S/O LATE DR.
R.K. SETH
.....PETITIONER
(BY SH. SUMEET RAJ SHARMA, ADVOCATE )
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HP
PWD, SHIMLA.
2. THE EXECUTIVE ENGINEER, HP
PWD SHIMLA DIVISION NO.III,
DISTRICT SHIMLA H.P.-171003
.....RESPONDENTS
(BY SH. NAND LAL THAKUR,
ADDITIONAL ADVOCATE GENERAL)
_____________________________________________________
This petition coming on for orders this day, the Court
passed the following:
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2
ORDER
The petitioner is before this Court in this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the .
Act'), seeking for appointment of an Arbitrator to resolve the dispute that has arisen between the parties.
2. It is the case of the petitioner that there was an agreement, vide Annexures P-2/A, between the petitioner and the respondents and accordingly a contract was entered into between the parties in respect of work c/o M.C.H. Block, at KNH Shimla (SH: Civil work W/S and S.I. site development and Rain water harvesting tank etc.) which work was awarded to the petitioner for an amount of Rs.11,66,05,987/- with stipulated period of 24 months to be reckoned from the 15th day from the issue of the award letter. It is submitted that though the arbitration agreement in Clause 25 provides for the appointment of the sole Arbitrator by the Chief Engineer HPPWD, Shimla Zone at Shimla but no such appointment has been made and no arbitrator has been appointed to adjudicate upon the dispute between the parties. It is further submitted that the work was to be commenced w.e.f 19.7.2014, however, the same could not be started on the scheduled date as there were number of hindrances at the very inception of the work and the hindrances continued till date from time to time. The period from 19.7.2014 to 5.9.2014 was consumed by the ::: Downloaded on - 28/04/2022 20:06:07 :::CIS 3 respondent department in dismantling the old building structure which was required to be cleared prior to the awarding the work to the petitioner. The petitioner applied for extension of time on 27.7.2016 .
and submitted that in case the complete drawings and designs are supplied to him within 10 days from the date of application for extension of time, the work could be completed by 28.6.2017. It is submitted that despite the petitioner having finished the work in all respects and to the satisfaction of the respondents within the extended period, the respondents certain payments on account of deviated, additional/substituted items have not been released.
r The petitioner also served legal notice upon the respondents on 30.12.2020 calling upon the respondents to pay his dues or refer to the matter to arbitration. Clause-25 of the agreement provides for appointment of an Arbitrator.
3. Notice of the petition was served upon the respondents.
The respondents have filed reply to the petition by raising various other objections including the maintainability of the petition. The respondents submit that the petition filed by the petitioner is also barred by limitation as the work in question stands completed during July 2018. After the completion of the work, the petitioner did not raise any dispute for continuous period of more than three years. The present petition has been field after the lapse of three years from the date of completion of ::: Downloaded on - 28/04/2022 20:06:07 :::CIS 4 the work and is therefore time barred and liable to be dismissed.
5. Having regard to the rival submissions taken note of, it is found: (i) that it is not disputed that there exists an arbitration clause in .
the Arbitration Agreement (Annexure P-2/S) between the parties; (ii) that certain disputes arose between the parties and, therefore, the existence of dispute is not doubted; (iii) that the invoked the arbitration petitioner clause calling upon the respondents to refer the dispute to the arbitrator; and (iv) that the respondents have failed to act in accordance with the agreed procedure in the arbitration agreement to refer the dispute to the arbitrator.
6. Under these circumstances, it is a fit case for making a reference to an independent arbitrator and this application deserves to be allowed and the dispute referred to arbitration.
7. Accordingly, Justice Arun Kumar Goel (Retd.), Shanti Kuttia Estate, Chakkar, Shimla-5, is appointed as an Arbitrator, after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.
8. On his giving consent to arbitrate the dispute between the parties, as an Arbitrator, Justice Arun Kumar Goel (Retd.), shall enter into reference, and shall pass an award in accordance with law. Copy of this order be forwarded to the learned counsel for the parties, as also ::: Downloaded on - 28/04/2022 20:06:07 :::CIS 5 to the Arbitrator. The Arbitrator so appointed shall be entitled to fee as per 4th Schedule appended to the Arbitration and Conciliation Act, 1996.However, parties are at liberty to agitate the issue of limitation .
before the learned Arbitrator.
9. The arbitration case is disposed of accordingly, so also pending miscellaneous application(s), if any.
( Mohammad Rafiq ) Chief Justice April 27, 2022 (vt) ::: Downloaded on - 28/04/2022 20:06:07 :::CIS