Kundan Lal Hari Ram and Co. vs Chief Engineer, HIMUDA and Another

Surjit Singh, J.—This application u/s 11(6) of the Arbitration and Conciliation Act, 1996 has been filed for referring the dispute, which is alleged to have arisen between the petitioner and the respondents, to the arbitrator.

Petitioner had been awarded some construction work by the respondents through written Agreement No. SDA-3 for 1990-91. Agreement contained an arbitration clause, extract Annexure A-1, per which, any dispute arising between the parties with respect to the execution of work, or interpretation of agreement etc. was required to be referred to an arbitrator, to be appointed by the Chief Engineer (respondent No. 1). A dispute having arisen between the parties, the petitioner approached the Chief Engineer for appointment of arbitrator in the year 2004, vide notice Annexure A-2. Arbitrator was appointed, vide order dated 28.7.2004, Annexure A-3. Later on, that order Annexure A-3 was cancelled, vide Annexure A-5 (legible copy A-6), because petitioner had been persuaded to settle the matter without reference to the arbitrator. Negotiations for settlement took place, but yielded no positive result. Petitioner again applied for appointment of arbitrator, vide notice dated 24.4.2008, Annexure A-9. He got no response. Therefore, on expiry of the prescribed period of 30 days, the petitioner approached this Court through the present petition for appointment of arbitrator.

Facts, as stated in the petition and culled out hereinabove, have not been disputed. Therefore, the petition is allowed and Shri V.K. Khurana, Engineer-in-Chief (Retd.), Flat No. 8, Block No. 31, Sector 3, New Shimla, is appointed as arbitrator. His fee is fixed at Rs. 30,000/ -. It shall initially be paid by the petitioner,but the arbitrator shall determine as to who is liable to pay his fee and if both the parties are liable, in what proportion?