M/s Jaibeer Singh-Birendra Singh And Sons vs State Of Uttarakhand & Another

Ramesh Ranganathan, CJ

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

Clause 32(c) of the agreement entered into between the applicant and the respondent reads as under:

".......Except where otherwise provied in the conract, all questions and disputs relating to the meaning of the specifications, designs, drawing and nstructions herein before mentioned and 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 and decided or not by the competent authority under the conditions, of this contract, matter or thing what so ever in any way arising out of or relationg to the contract, designs, drawings, specification, estimates, instructions, order on these conditions or otherwise concerning the work or the executing or failure to execute the same, whether arising during the progress of the work or after the completion or a abandonment thereof, shall be referred to the sole arbitration or the person or persons appointed by the Chief-Engineer, public works department U.K. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant, that he had to deal with the matters 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 mattes in dispute or difference. The arbitrator to whom the matter is originally or subsequently refered being in incapracited to act the chief engineer shall appoint another person to act as arbitrator in accordance with the term 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 the arbitration at all. The arbitrator (S) may from time to time with consent of the parties enlarge the time for making and publishing the award.....

On the ground that, despite a request being made for appointment of an Arbitrator, the respondents had not acceded to their request, the applicant has invoked the jurisdiction of this Court seeking appointment of an Arbitrator.

In the counter affidavit, filed by the State, the fact that such an arbitration clause exists has been admitted. While the respondents contend that the applicant's claim is barred by limitation, these are matters which can only be agitated before the Arbitrator as, in terms of Section 11(6-A) of the Arbitration and Conciliation Act, 1996, these are not matters for examination by the High Court which is required to confine its examination only to the existence of an arbitration agreement.

When this Court asked learned counsel for both the parties to suggest a common name of a person who could be appointed as an Arbitrator, both Mr. Vinay Kumar, learned counsel for the applicant and Mr. Paresh Tripathi, learned Chief Standing Counsel for the State Government, would submit that Mr. J.K. Pant, Retd. Chief Engineer, P.W.D, resident of 172, South Vanasthali, Mandir Lane, Ballupur, Dehradun, may be appointed as the Arbitrator.

As learned counsel on either side are in agreement, Mr. J.K. Pant, Retd. Chief Engineer, P.W.D, resident of 172, South Vanasthali, Mandir Lane, Ballupur, Dehradun, is appointed as an Arbitrator after his disclosure in writing is obtained in terms of Section 11(8) of the Arbitration and Conciliation Act; and only after receipt thereof shall his appointment, as an Arbitrator, come into force.

On his giving his consent to arbitrate the disputes between the parties, Mr. J.K. Pant, Retd. Chief Engineer, P.W.D, resident of 172, South Vanasthali, Mandir Lane, Ballupur, Dehradun, shall enter reference, and shall pass an award at the earliest preferably within a period of six months from the date on which he enters reference. The learned Arbitrator shall fix his fees in consultation with both the parties.

The arbitration application is, accordingly, disposed of.