Sanjeev Kumar Thakur vs State Of H.P. & Others

L. Narayana Swamy, CJ

In this petition under Section 11 (6) read with Section 11(12(b) of the Arbitration and Conciliation Act, 1996, the petitioner, who is a Government Contractor and to whom the work of construction of 16.75 meters span RCC T-Bim bridge over Khatrod Nallah at RD2/735 on the road known as 'Kahi-Da-Bahal to Sukrala via Khatrod Paniali Jattan Road", seeks a direction for appointment of an Arbitrator for resolving the dispute between the petitioner and the respondents.

Respondents have filed reply. Alongwith the reply, the respondents have annexed a copy of Undertaking given by the petitioner, dated 04.04.2018 (Annexure R -2), wherein he has undertaken that he will not claim any market rate, any escalation of rates and prolongation benefits and will also not seek any arbitration or approach any Court of law for the said project in lieu of the payment due to the Contractor.

Learned Counsel for the petitioner submits that Clause 25 of the Agreement (Annexure P-1) is regarding referring the dispute to the Arbitrator. He further submits that once there is an arbitration Clause in the Agreement and one party fails to appoint an Arbitrator, on the request of the other party, the aggrieved party can approach the Court of law seeking appointment of an Arbitrator.

On the other hand, learned Additional Advocate General submits that when the petitioner had given undertaking to the effect that he will also not seek any arbitration or approach any Court of law in lieu of the payment due to the Contractor, it is not open for him to prefer this Arbitration case.

I have heard learned Counsel for the parties and have perused the entire file carefully.

From the perusal of the record, it is evident that there is an agreement entered into between the parties wherein there is an arbitration clause and on the request of the petitioner, the respondents failed to appoint an arbitrator in order to resolve the dispute between the parties.

In the aforesaid facts and circumstances, I deem it a fit case for appointment of an Arbitrator in order to resolve the dispute between the parties. Accordingly, this application is allowed and Shri K.S. Chandel, retired District and Sessions Judge, is appointed as Arbitrator. The aforesaid Arbitrator is requested to enter into the reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open for the learned Arbitrator to determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act.

Needless to say, award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this Court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period.

The petition is disposed of accordingly.