Des Raj Nagpal vs Union of India and Others

M.M. Kumar, C.J.—The instant petition filed u/s 11 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 (for brevity the Act)

has been preferred by the contractor for appointment of an independent arbitrator. It is not disputed that contract agreement No. CEUZ-04/95-96

was executed between the parties on 03.04.1995 (Annexure A). It has also not been disputed that the work was to commence on 24.04.1995

and it was to be completed on 31.03.1997. On 08.08.1997 the petitioner filed AA No. 150/1997 for appointment of an arbitrator. On transfer,

the Court of District Judge Jammu appointed Shri D.K. Chaturvedi as arbitrator on 04.10.1997. Even appeal against the order of District Judge

being CIMA No. 153/1998 was dismissed on 30.11.1998 by this Court. Accordingly the arbitrator announced the award on 27.03.1999 which

was made rule of the Court vide order dated 28.02.2002. Against the order of District Judge dated 28.02.2002 appeal CIMA No. 11/2002 is

pending before this Court.

The present petition has been preferred seeking reference of the dispute in respect of the work executed later on because the work remained

under suspended animation from 31.03.1997 to 07.11.2000. In the present application it has been claimed that the work was resumed on

08.11.2000 after discussing the same in the meeting held on 05.11.2000 and the aforesaid work has been completed on 28.07.2001. In his

rejoinder affidavit the petitioner has claimed that respondents were processing the claim of the petitioner in respect of deviations for flooring. In that

regard reference has been made to letter dated 11.03.2005 sent by the Garrison Engineer to the petitioner. There appears to be admission in para

(e) that the work under the contract was completed on 28.07.2001 and extension of time for completion of entire work under the contract had

been granted. The case for grant of enhancement of deviation limit appears to be pending with the higher authorities. Likewise, reference has also

been made to letters dated 22.08.2006, 18.05.2001, 02.09.2006 and 02.06.2004 which show that the dispute is alive before the authorities.

In the objections filed by the respondents it has been asserted that appointment of another arbitrator cannot be claimed for the same dispute

which was subject matter of consideration in AA No. 150/1997. According to the respondents the dispute is the same and the petitioner has not

submitted any final bill. Another objection raised is that the claim is time barred.

Having heard learned counsel for the parties I am of the considered view that two basic conditions for making a reference stand satisfied in the

present case. There is clause 70 of the agreement providing for arbitration. It is also established that there is a dispute with regard to the resumed

work executed from 08.11.2000 to 28.07.2001 because the work has remained suspended from 31.03.1997 to 07.11.2000. It appears that

dispute highlighted in AA No. 150/1997 pertained to the works which were executed earlier, therefore, reference to the independent arbitrator is

imperative. The objection with regard to duplicacy of the dispute, claiming that it has earlier been settled, has not prima facie impressed me,

however, I am not rejecting the same and leave it open to the arbitrator to decide.

The argument of the respondents that no additional reference based on the same contract could be made is not 4 acceptable. There is no rule of

law which constitutes a bar for making a reference of the second claim emerging out of the same contract. In that regard reliance may be placed on

a 3-Judge Bench judgment of Hon'ble the Supreme Court rendered in the case of Tehri Hydro Dev. Corporation Ltd. and Another Vs. Jai

Prakash Asso. Ltd., However, the respondents shall be at liberty to raise all other objections before the arbitrator.

As a sequel to the above discussion, Shri S.K. Gupta, Jt. DG (Contracts) CWEE Pune Complex, Gen Cariappa Marg, Pune-1, who is also on

the panel of arbitrators, is appointed as arbitrator. He shall enter the reference and decide the claim of the parties in accordance with law. Registrar

Judicial shall sent intimation to the arbitrator with a copy of this order.