Mazhar Ali vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This application is filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short 'the 1996 Act') seeking appointment of an Arbitrator.

The applicant states that an agreement was entered into, for execution of a pedestrian bridge, with the Superintending Engineer on 7.08.2010; the bridge collapsed; collapse of the bridge was not because of his negligence; on the ground that certain amount is due and payable to him by the respondents, the applicant issued notice dated 20.11.2014 requesting the respondents either to make payment, or agree for appointment of an arbitrator for resolution of the dispute; and, in their reply dated 23.12.2014, the respondents had sought to place the blame on the applicant, but had failed to appoint an Arbitrator.

Clause 30(2)(c) of the Agreement dated 07.08.2010 reads as under:

"Except where otherwise provided in the contract all questions and disputes relating to meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other questions, claim, right, or rates for extra items sanctioned and 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 the contract, designs, drawings, specifications, estimates instructions, or orders on these conditions or otherwise, concerning the works, 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, Level-I Public Works Department, U.K. It will be no objection to any such appointment that the arbitrator so appointed is a Govt. servant that he had to deal with the matter to which the contract relates and that in the course of his duties as Government servant he had expressed views on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally or subsequently referred being incapacited to act, the Chief Engineer shall appoint another person to act as arbitrator in accordance with the terms of 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.P.W.D. as aforesaid shall act as arbitrator and if for any reason that is not possible, the matter is not to be referred to arbitration at all the arbitrator(s) may from time to time with the consent of the parties enlarge the time for making and publishing the award.

Subject as aforesaid the provisions of the Arbitration Act 1960, or any statutory modification or re-enactment thereof and the rules made there-under and for the time being in force shall apply to the arbitration proceeding under this Clause."

In their counter affidavit, the respondents deny the applicant's claim for payment, but admit the existence of an arbitration clause in the agreement dated 07.08.2010.

The scope of examination by this Court, in an application made under Section 11 of the 1996 Act, is confined, in terms of Section 11(6-A) of the 1996 Act, only to the existence of an arbitration agreement, and all other questions are required to be relegated to the Arbitrator for resolution. As it is evident, that there exists an arbitration clause in the agreement dated 07.08.2010, and as the respondents have chosen not to appoint an arbitrator even till this application was filed, an arbitrator must necessarily be appointed by this Court.

I consider it appropriate, in such circumstances, to appoint Sri K.D. Bhatt (a retired District Judge), R/o House No. 297, Lane No. 5, Madhur Vihar, Ajabpur Khurd, Dehradun, as an Arbitrator to resolve the disputes arising between the parties under the Agreement dated 07.08.2010.

In terms of Section 11(8) of the 1996 Act, the learned Arbitrator shall furnish his disclosure in writing to this Court within two weeks from the date of receipt of a certified copy of this order. After such a disclosure is made in writing, the Arbitrator shall enter upon reference, resolve the disputes between the parties and pass an award with utmost expedition and, in any event, within six months thereafter. The Arbitrator shall fix his remuneration, and charges towards other expenses, in consultation with both the parties to the dispute.

The Arbitration Application stands disposed of accordingly. No costs.