Jagdish Chand Gupta vs State Of Himachal Pradesh And Others

Mohammad Rafiq, CJ

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.

It is the case of the petitioner, who is a Government Contractor, that there was an agreement (Annexure P-2), between the petitioner and the respondents and accordingly a contract was entered into between the parties in respect of work “providing Sewerage System to Solan Town (SH: Improvement & Up gradation of 2.90 MLD STP by Designing and Supplying and Fixing of Tube settler in the existing clarifier of Sewerage Treatment Plan Solan in Tehsil and Distt. Solan, H.P. The expenditure to be incurred for completion of the aforesaid work was approximately to the tune of Rs. 5,40,11,453/-.On the award of the work, the contractor disputed his infrastructure and manpower at the site of the work. The work was to be completed on or before 14.03.2017, however the same was actually completed on 27.07.2019. The petitioner cited various reasons for delay in completion of work which were accepted by the Department and he was granted extension up to 31.08.2019 to complete the aforesaid work. After completion of the work, the petitioner raised demand for the amount due including escalation, difference in GST, payment for extra works, prolongation damages and final bill. Since the payments were not released, the petitioner was left with no other remedy but to invoke arbitration clause for redressal of his grievances. Clause 25 of the Agreement provides for appointment of an Arbitrator.

Notice of the petition was served upon the respondents. However, they did not file reply to the petition, but the learned Additional Advocate General submits that he has no objection, if an Arbitrator is appointed.

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) between the parties; (ii) that certain disputes arose between the parties and, therefore, the existence of dispute is not doubted; (iii) that the petitioner invoked the arbitration 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.

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.

Accordingly, Mr. S.K. Chaudhary, District and Sessions Judge (Retd.), R/o House No. 98-99, Mission Compound, Palampur, Distt. Kangra, H.P.-176061, 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.

On his giving consent to arbitrate the dispute between the parties, as an Arbitrator, Mr. S.K. Chaudhary, District and Sessions Judge (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 to the learned Arbitrator. The learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4th Schedule appended to the Arbitration and Conciliation Act, 1996.

The arbitration petition is disposed of accordingly, so also pending miscellaneous application(s), if any.