Magot Engineering Consultants Pvt. Ltd. vs Chief Executive Officer (URRDA)

Vipin Sanghi, CJ

The applicant has preferred the present Arbitration Application, under Section 11(6) of the Arbitration and Conciliation Act, 1996 (the Act), to seek appointment of a sole arbitrator for adjudicating the disputes, which have arisen between the parties.

The case of the applicant is that the applicant was awarded various contracts for the preparation of DPRs for 17 roads under PMGSY, PWD, namely :-

i. Kharkakanatoli-Farsad Palli to Kharku kana Toli Stage- I

ii. Saran to Banger Motor Road Stage- I

iii. Saran to Toli Motor Road Stage – I

iv. Maharuri-Bageshwar-Dofar-Kotmanya

v. Kharlekh-Bhanar Motor Road

vi. Nankanyalikote to Jagthana

vii. Km 18 of BKT Motor Road to Lily

viii. Bageshwar - Kapkot Tajam Road Km 29 to farsali Palli Stage – II

ix. Munarebend to Suoi M/R Stage – II

x. Rikhari-Baccham M/R 1st to 4th Part

xi. Harsila to Nankanyalikote

xii. Nachti to Badait

xiii. Nachti-Kaflani-Sumgarh-Gashi-Lahur Motor Road

xiv. Badi to Panyali Motor Road

xv. Harsila to Pudkoni Motor Road

xvi. Sama-leti-Gogina Motor Road

xvii. Majkhet Motor Road

The following contract bonds were finalized by the Executive Engineer, PMGSY, RES, PIU-2 Kapkot, (Bageshwar), Uttarakhand :-

“02/EE/PMGSY dated 23.06.2012 (Date of Start was 23.06.2012 and Date of Completion was 22.08.2012)

03/EE/PMGSY (Date of Start was 23.06.2012 and Date of Completion was 22.08.2012) dated 23.06.2012)

04/EE/PMGSY dated 23.06.2012 (Date of Start 23.06.2012 and Date of Completion was 22.08.2012)

05/AE/PMGSY/2011-2012 dated 02.02.2012 (Date of Start 02.02.2012 and Date of Completion was 17.03.2012)

06/AE/PMSY/2011-2012 dated 02.02.2012 (Date of Start was 02.02.2012 and Date of Completion was 17.03.2012)

11/EE/PMGSY dated 28.07.2012 (Date of Start 28.07.2012 and Date of Completion was 27.09.2012)

19/AE/PMGSY dated 22.01.2013 (Date of Start was 22.01.2013 and Date of Completion was 21.03.2013)”

The applicant states that the total work, under the aforesaid contracts, was of the value of Rs. 50,40,866.62/-. The applicant claims that, under the aforesaid contracts, the applicant submitted its bills, but till date full payment has not been received from the respondents.

The case of the applicant is that the applicant has been pursuing the matter with the respondents for clearance of the outstanding payments, but to no avail. According to the applicant, an amount of Rs. 35,49,293.00/- is still outstanding, apart from release of FDRs furnished as security amounting to Rs. 2,86,000/-.

On 11.08.2018, the applicant has invoked the arbitration agreement contained in Clause 32 of the contracts entered into between the parties, which are identical. Clause 32 of the General Conditions of Contract, inter alia, provides as follows :-

“c) Except where otherwise provided in the contract, all question & disputes riflating to the meaning of the specification designs, drawing & instruction herein before mentioned & to the quality of workmanship or materials used on the work or as to any other question, claim right or rates for extra items sanctioned & decided or not by the competent authority under, the conditions, of this contract matter or thing whatsoever in any way arising out of or relating to contract, designs, drawing, specification, estimates, instructions, order on these conditions or otherwise concerning the work or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof, shall be referred to the sole arbitration of the person or persons appointed by the chief engineer, public works department UTTARAKHAND. It will be no objection to any such appointment that the arbitrator so appointed is a Govt. servant, that had to deal with the matters to which the contract relates & in the course of his duties as Govt. servant he had expressed views on all or any of the matters in dispute or dmerence. The arbitrator to whom the matter is originally or subsequently referred being in incapracited to act the chief engineer shall appoint another person to act as arbitrator in accordance with theteras of the contract, it is also a term of this contract that no person other than a person appointed by the chief engineer of the U.K. as aforesaid, shall act as arbitrator & if for any reason that is not possible, the matter is not to be referred to the time for making & publishing the award.

Subject as aforesain the provision of the arbitration act 1984, or any statutory modification or reenactment thereof & rules made the under & for the time being inforce shall apply to arbitration proceedings under this clause.”

Despite invocation of the arbitration agreement, no arbitrator has been appointed by the parties. Consequently, this Arbitration Application has been preferred.

Despite opportunity, no reply has been filed by the respondent.

Learned counsel for the respondent, on instructions, states that all the contracts contained the same General Terms and Conditions, which contains an arbitration agreement, part whereof has been extracted hereinabove.

In the light of the aforesaid, I am inclined to allow this application. Accordingly, I appoint Mr. Justice V.K. Bist, Retd. Chief Justice, High Court, as the sole Arbitrator to adjudicate all the claims and counter-claims of the parties to the contracts.

The present Arbitration Application stands disposed of in the aforesaid terms.