Chattisgarh High Court
N.S.Associates Pvt. Ltd vs Singhania Buildcon Pvt. Ltd on 9 May, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ARBR No. 29 of 2018
N.S. Associates Pvt. Ltd. Through Its Director Namely Shashank Gupta,
S/o Late Satish Chandra Gupta, Aged About 53 Years, R/o House No.
190, 2nd Floor, Sukhdev Vihar, New Delhi. 110025.
---- Petitioner
Versus
Singhania Buildcon Pvt. Ltd. Having Its Registered Office At Amanaka,
G.E. Road, Near Railway Crossing, Raipur Chhattisgarh. Cin No.
U45201ct1999ptc013474 Also At 3rd And 4th Shyam Chamber, Heerapur
Road, Raipur, Chhattisgarh - 492001.
---- Respondent
(Cause-title taken from Case Information System) For Petitioner : Mr. Dharmesh Shrivastava, Advocate.
For Respondent : None Hon'ble Shri Arup Kumar Goswami, Chief Justice Order on Board 09.05.2022 Heard Mr. Dharmesh Shrivastava, learned counsel for the petitioner. Also heard Mr. Ankur Agrawal, learned counsel, appearing for the respondent.
2. Today Mr. Ankur Agrawal, learned counsel, appears and submits that the respondent has taken No Objection Certificate from him and Mr. Ashish Surana and as such, they are not appearing for the respondent. Till today, no reply-affidavit has been filed by the respondent.
3. Having regard to the fact that the arbitration proceeding is pending from 2018 and that the respondent had not taken any further steps for 2 engagement of another counsel, it is considered appropriate to proceed further with the matter, more so, when no reply is filed to contest the averments.
4. The petitioner, which is a private limited company, is engaged in the business of undertaking and executing work of construction, renovation, interior / exterior and fabrication, etc. The respondent is also a private limited company engaged in the field of real estate development and construction.
5. An agreement was entered into between the parties on 20.12.2015 for interior work of 'Singhania Sarovar Portico Hotel' at Raipur for a lump- sum amount of Rs.1.74 crore on labour charge basis. Dispute has arisen between the parties in connection with execution and non-payment of fees.
6. The petitioner had written a letter dated 25.06.2018 for appointment of an Arbitrator to the respondent, which reads as follows:
"Subject : Appointment of Arbitrator.
Dear Sir, We had raised disputes/final bill amounting to Rs.1.74 crores vide our letter dated 15.03.2018 and you were duly informed vide our letter dated 30.05.2018 that if payment of Rs.1.74 crores is not released within 10 days from 30.05.2018, it will be presumed that a dispute had arisen in respect of payment against final bill in terms of 3 clause 35 of the agreement dated 20.12.2015. It is regretted that clause 35 of agreement relating to arbitration was inadvertently referred to as clause number 36 in our communication dated 30.05.2018. In terms of clause 35 of the agreement, decision by the Owner/Project Manager was to be given within 25 days i.e. 10+10+5days from the date of submission of the disputes by the contractor I.e. decision on the dispute ought to have been given by 30.05.2018 plus 25 days i.e. 24.06.2018. Since no decision has been communicated so far in respect of resolution of disputes, arbitration clause 35 of the agreement dated 20.12.2015 is hereby invoked and Shri R.B. Malhotra, Retired Chief Engineer DDA, House no.17, Road number-8, Punjani Bagh East, New Delhi-110026 is hereby appointed as Arbitrator to adjudicate upon disputes valued at Rs.1.74 crores and disputes/claims if any from your side."
7. In paragraph 7.31 of the petition, it is stated by the petitioner as follows:
"7.31 The respondent without acknowledging letter dated 25.06.2018 of petitioner for appointment of Arbitrator, served notice dated 28.06.2018 (posted on 04.07.2018) to petitioner under Section 21 of Arbitration & Conciliation Act, 1996, for nominating and approving 4 the selection of Mr. Ganpat Rao (Retd. District & Session Judge) as Sole Arbitrator in the matter of differences and controversies which have emerged between the parties."
8. The relevant portion of the notice dated 28.06.2018, reads as follows:
"Arbitration of controversies emerging under Contract dated 20.12.2015 between M/s. N.S. Associates Pvt. Ltd. and M/s. Singhania Buildcon Pvt. Ltd.
Dear Sir, You have entered Contract dated 20.12.2015 with us undertaking completion of interior work except plumbing and electrical work of Sighania Sarovar Portico Hotel, Opp. Church, Near Panchdam Mandir, Hirapur, Raipur (C.G.) as per terms/conditions existing in said contract. You have failed to complete the interior work, which you had consented to build on our behalf.
You have been paid advances and running bills by us, despite this; you are delaying the matter inordinately. Time being essence of the contract, you have not followed the time schedule.
Some part of building you have built and consented for joint inspections were seen has defective and unsuitable 5 for occupation.
Despite requests you have neglected in completing the work. Due to contravention of this agreement we have suffered losses and these losses are continuing suffering each day. Our huge investment stands blocked. We have to pay interest to our Banker for the finance got in making payment to you.
As per clause No. 35 of the said contract, there exist an agreement for referring the controversies by Arbitration. Per enactments of section 21 of the Arbitration and Conciliation Act, 1996 we hereby serve you notice for nominating/approving the selection of Mr. Ganpat Rao (Rt. Dist. And Sess, Judge), R/o H.No. 151, Banyan, Housing Board Colony, Near Saddani Darbar, Boriyakala, Raipur, Teh & Dist. Raipur (C.G) 492001 Mo. No. 98933-18655, E-mail: [email protected] being Sole Arbitrator in the matter of differences and controversies which have emerge between the parties herein and the same be referred for adjudication to him."
9. A perusal of the above goes to show that the respondent had also accepted that there is a provision of referring the dispute to an Arbitrator.
10. There is no mechanism provided in Clause 35 with regard to appointment of an Arbitrator. The petitioner and the respondent had 6 chosen to appoint their own Arbitrator and there is no mutual agreement on that score. It is in that circumstance, petition is filed before this Court.
11. On due consideration, I am of the considered opinion that the petitioner has made out a case for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.
12. In that view of the matter, this application for appointment of an Arbitrator is allowed.
13. Hon'ble Mr. Justice V.K. Shrivastava, (Retired), is appointed as an Arbitrator to adjudicate the dispute between the parties.
14. The Registry is directed to communicate this order to Hon'ble Mr. Justice V.K. Shrivastava, (Retired) in his Lordship's proper address.
15. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties.
Sd/-
(Arup Kumar Goswami) Chief Justice Hem