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 08 roads under PMGSY, PWD, namely Daman to Desau Motor Road, Dheora to Devou Motor Road, Lelta Link Road to Mantoli Motor Road, Kimari to Bhitali Motor Road, Magti-Pokhari to MarbKhora Motor Road, Kotha Band to Pangiya Motor Road, Km 10.500 of L 042 to Saravi Link Motor Road and Maletha to Badanu Motor road. The contract agreements were signed on 23rd December 2012, 26th December 2012, 04th April 2013 and 27th November 2013.

The following contract bonds were finalized by the Executive Engineer PMGSY, PWD, Haridwar, Head Quarter – Kalsi, Dehradun (Uttarakhand) :-

“01/AE-II/PMGSY, 2013-14 dated 04.04.2013

02 /AE-II/PMGSY, 2012-2013 dated 23.12.2012

02 /AE-II/PMGSY, 2012-13 dated 26.12.2012

03/AE-II/PMGSY, 2012-13 dated 26.12.2012

08/AE-IV/PMGSY, 2013-14 dated 27.11.2013”

The applicant states that the total work, under the aforesaid contracts, was of the value of Rs. 22,58,884.50/-. 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 dates, on which the contract bonds were issued, are the following :-

“First contract bond i.e. 01/AE/PMGSY/2013-14 costing Rs. 2,59,644.00 was issued on 04/04/2013 in which the applicant had to prepare DPR with proposal and drawing for Daman to Desau Motor road (12.675km), Dheora to Devou motor road (9.170 km) and Lelta Link road to Mandoli motor road (10.540 km).

Second contract i.e. 02/AE/PMGSY/2013-14 was issued on 23/12/2012 in which the applicant had to prepare DPR with proposal and drawing for Kimari to Bhitarli motor road (10.950 km.).

Third contract i.e. 02/AE/PMGSY/2013-14 was issued on 26/12/2012 in which the applicant had to prepare DPR with proposal and drawing for Magti-Pokhari to MarbKhora motor road (11.950 km.).

Fourth contract i.e. 03/AE/PMGSY/2013-14 was issued on 26/12/2012 in which the applicant had to prepare DPR with proposal and drawing for Kotha Band to Panjiya motor road (18.275 km) and Km. 10.500 of L042 to Sardi Link motor road (5.317 km).

Fifth contract i.e. 08/AE/PMGSY/2013-14 was issued on 27/11/2013 in which the applicant had to prepare DPR with proposal and drawing for Maletha to Badanu motor road (6.000kms.)

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. 310,09,790.50/- is still outstanding, apart from release of FDRs furnished as security amounting to Rs.47,500/-.

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.