ARBAP/20/2018 of M/s G.s. Express Pvt. Ltd. Vs The Chief Engineer Pmgsy-6

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALArbitration Petition No. 20 of 2018

M/s G.S. Express Pvt. Ltd. …….Petitioner

Versus

Chief Engineer PMGSY-6 & others …….Respondents

Shri Ashish Joshi, learned counsel for the petitioner. Shri B.S. Parihar, learned standing counsel for the State.

JUDGMENT

24[th] September, 2020

RAVI MALIMATH, A.C.J. (Oral)

The petitioner is before this Court, in this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’), seeking appointment of sole Arbitrator to resolve the disputes that have arisen between the parties.

2. Learned counsel for the petitioner contends that bond has been entered into between the petitioner and the respondents on 15.03.2007. In respect of the said bond, certain disputes have arisen between the parties and as such the petitioner claims that the sole Arbitrator be appointed to resolve the disputes that have arisen between the parties. In that regard, Clause 3(c) of the bond dated 15.03.2007, which relates to Arbitration, is referred to by the learned counsel for the petitioner. The said clause provides for settlement of disputes through Arbitrator. Clause 3(c) of the bond dated 15.03.2007 reads as under:-

“3(c) Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, designs, drawing and instructions 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 of thing whatsoever in any way arising out of or relating to the 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, Uttaranchal. It will be no objection to any such appointment that the arbitrator so appointed is 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 matters in dispute or difference. The arbitrator to whom the matter is originally or subsequently referred being in incapacitated to act the Chief Engineer shall appoint another person to act as arbitrator in accordance with the term of contract. It is also term of this contract that no person other than person appointed by the Chief Engineer of the Uttaranchal Prades, P.W.D. as aforesaid, shall act as arbitrator and if for any reason, that is not possible, the consent of the partis enlarge the time for making and publishing the award.

Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause.

The sole arbitrator or arbitrators to be appointed by the Engineer shall be of the status given below.

1. For claims or amount in dispute of not over Rs.5000/- in the case of work order and in

case of contracts accepted by any Assistant Engineer/ District Engineer /Sub-Divisional Officer /Executive Engineer.

An Executive Engineer of Uttranchal Pradesh, P.W.D.

2. For claims of amounts in dispute of over Rs.5000/- but not over Rs.1,00,000/-/

Superintending Engineer, Uttranchal

Pradesh, P.W.D.

3. For claims of amount in dispute aggregating to more than Rs.1,00,000/- but not more than Rs.3,00,000/-.

Dy. Chief Engineer or Additional Chief Engineer, Uttranchal Pradesh Government.

4 For claims of amount in dispute aggregating to more than Rs.3,00,000/-.

Two arbitrators, one of the rank of Dy. Chief Engineer, Uttranchal Pradesh, P.W.D./ or Addl. Chief Engineer and other officer or judicial service appointed by Uttranchal Pradesh Government.

All disputes between the parties to the contract arising out of and relating to the contract shall after written notice by either party to the contract to the other party, be referred to arbitration as above. Unless the parties otherwise agree such reference shall not take place until after the completion, alleged completion or abandonment of the work or the determination of the contract. The value of the arbitration shall be such place or places as may be fixed by an arbitrator(s) in his/their sold discretion. Any suit or application for the enforcement of this arbitration clause shall be filed in competent Court at Lucknow, and no other court of any other district of the Pradesh or outside

Uttranchal Pradesh shall have any jurisdiction in the matter. The award of the arbitrator shall be final conclusive and binding on both the parties of the contract”.

3. Counter-affidavit is filed by the State/respondent no.4. Various contentions have been raised including one of limitation. By following the judgments of the Hon’ble Supreme Court passed in SBP & Co. vs. Patel Engineering Ltd. & another reported in (2005) 8 SCC 618 and in Indian Oil Corporation Ltd vs. SPS Engineering Ltd. reported in (2011) 3 SCC 507, the said issues are matters to be considered by the Arbitrator. The respondents do not dispute the existence of the Arbitration clause.

4. When this Court asked learned counsels for both the parties to suggest common name of person who could be appointed as an Arbitrator, both Shri Ashish Joshi, learned counsel for the petitioner and Shri B.S. Parihar, learned standing counsel for the State, would submit that Shri U.K. Uniyal, Senior Advocate, R/o 102 Golf Links, New Delhi, may be appointed as the sole Arbitrator.

5. As learned counsels on either side are in agreement, Shri U.K. Uniyal, Senior Advocate, R/o 102 Golf Links, New Delhi, is appointed as an Arbitrator after his disclosure in writing is obtained in terms of Section 11(8) of the Act; and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.

6. On giving consent to arbitrate the disputes between the parties, Shri U.K. Uniyal, Senior Advocate, R/o 102 Golf Links, New Delhi, shall enter reference, and pass an award in accordance with law. The learned Arbitrator shall fix his fees in consultation with both the parties.