M/s Raju Singh Rathore vs State Of Rajasthan

The present arbitration applications under Section 14 & 15 (1) (a) and (2) of the Arbitration and Conciliation Act, 1996 ('the Act, 1996') have been filed for appointment of an independent & impartial arbitrator for resolution of disputes between the parties.

It is inter alia indicated in the application that the applicant is a registered partnership firm at Bikaner. The applicant was awarded contract for manufacture of pucca bricks at various brick kilns and supply thereof. It is also indicated that for resolving the dispute between the parties, the agreement contains arbitration Clause 19A.

It is submitted by learned counsel for the applicant that on account of dispute having arisen between the parties, the applicant sent a notice in this regard to the respondents and the respondents appointed Shri A.K.Gupta, Chief Engineer (Irrigation) North, Hanumangarh as an arbitrator to adjudicate upon the dispute, however, Shri A.K.Gupta vide his letter dated 10/7/1998 withdrew himself from the arbitration. Thereafter, on 23/12/1998 the applicant suggested the name of Shri V.N.Arya, Superintending Engineer (Irrigation), Hanumangarh in place of Shri A.K.Gupta. It is submitted that again on 11/5/1999 the applicant wrote a letter to the respondents for appointing Shri V.N.Arya as an arbitrator, but the respondents did not act upon the said request of the applicant. The applicant, thereafter, approached the District Court, Bikaner by filing Misc. Civil (Arbitration) Application No. 34/2001 with a prayer to appoint Shri V.N.Arya as an arbitrator or in the alternative any other independent & impartial person may be appointed as an arbitrator to adjudicate upon the disputes between the parties. By order dated 28/2/2002 the learned District Judge, Bikaner appointed Shri Jagjeet Singh, Retired Addl. Chief Engineer, Irrigation, Bikaner as an arbitrator.

It is further submitted that Shri Jagjeet Singh continued with the arbitration proceedings for long, however, vide his letter dated 19/3/2012 he withdrew himself as an arbitrator due to personal reasons. Thereafter, the applicant filed an application on 28/8/2014 before the District Judge, Bikaner and prayed for appointing Shri S.C.Patni, Retd. Superintending Engineer, resident of Bikaner, as an arbitrator, which application was allowed on 31/3/2015. It is submitted that said Shri S.C.Patni expired on 24/10/2015 and once again the post of arbitrator fell vacant. Thereafter, the applicant again approached respondents for appointment of arbitrator in place of Shri S.C.Patni but the respondents failed to appoint any arbitrator.

It is submitted by learned counsel for the applicant that notices dated 24/5/2018 (Annex.7) and 23/7/2018 (Annex.8) have also been issued to the respondents for appointing arbitrator but the same have not been responded by the respondents.

It is submitted that as the respondents have failed to appoint arbitrator and as the disputes still exist between the parties, therefore, in terms of the arbitration clause, an independent & impartial arbitrator may be appointed.

Learned counsel appearing for the respondents raised preliminary objections as to maintainability of the present application. It is submitted that the applicant has raised dispute about four different & distinct contracts and, thus, the present single application for four separate and different contracts is not maintainable. It is further indicated in the reply that the application is time barred as the applicant has filed the application after lapse of six years, and, therefore, the application deserves to be dismissed on that count also. However, existence of arbitration agreement between the parties has not been denied.

I have heard the learned counsel for the parties and have perused the material available on record.

During the pendency of the application, by way of additional affidavit, the applicant has pointed out that the record of the arbitration is lying with Mr. Jagjeet Singh, arbitrator, residing at 12-A, Sadulganj, Bikaner.

As noticed, hereinbefore, the arbitrator was appointed way back in the year 1998 and ever since, the proceedings are pending for resolution and three arbitrators have been part of the proceedings and the dispute has so far not been resolved between the parties. Admittedly, the last arbitrator Mr. S.C.Patni was appointed by the District Court, Bikaner by its order dated 31/3/2015, who has expired and, therefore, a fresh arbitrator is required to be appointed.

So far as the issues sought to be raised by the respondents are concerned, the same be raised before the arbitrator in the pending arbitration proceedings.

In view of the above, the application is allowed. Mr. Pukhraj Sankhla, Retired Chief Engineer, Irrigation Rajasthan, R/o Amar Singh Marg, Outside Nagori Gate, Jodhpur (Mobile No. 9672444499) is appointed as a sole arbitrator to adjudicate upon the dispute between the parties in terms of the arbitration agreement and as per the Manual of Procedure for Alternative Dispute Resolution, 2009, as amended upto date. Respondents would be free to raise all objections before the arbitrator. The above appointment is subject to necessary disclosure being made under Section 12 of the Act.

Mr. Jagjeet Singh, retired Addl. Chief Engineer residing at 12-A, Sadulganj, Bikaner is directed to handover the record under receipt to the parties for being handed over to the newly appointed arbitrator forthwith.