R. BAYAPU REDDY J.

( 1 ) THESE four applications are filed by the same applicant under the provisions of Section 11 (5) of the Arbitration and Conciliation Act, 1996 (for short, "the New Arbitration Act"), seeking appointment of an independent arbitrator by the Hon ble Chief Justice of High Court of A. P. for deciding the disputes that have arisen between him and the respondents relating to the execution of different contracts entered into between them.

( 2 ) THE petitioner in all the petitions is M/s. Marshal Corporation Ltd. , Visakhapatnam, represented by its Director, while the respondents represent the Union of India the first respondent being the Engineer-in-Chief, Army Head Quarters, New Delhi and the second respondent being the Chief Engineer (Navy), Visakhapatnam. The petitioner is having its registered office at Calcutta and Branch Office at Visakhapatnam. It was awarded the contract work of providing accommodation for married sailers at Visakhapatnam by the respondents under Contract agreement No. CEDE/viz/57 of 85-86, which is the subject matter relating to Arbitration Application No. 5/96. The said work was commenced on 1-1-1986 and it had to be completed by 31-12-1988. On account of various lapses on the part of the second respondent, there was delay in completing, the work and it was finally completed on 23-12-1989 and a completion certificate was also issued. Subscquent to 31-12-1988 by which date the work had to be completed as per the original agreement, the respondents were granting extension by addressing various letters and the work was finally completed by 23-12-1989. On account of various lapses on the part of the respondent-department and due to non-adherence to time schedule by the Department, various disputes arose between the parties and such disputes could not be settled amicably. The petitioner, therefore, requested the second respondent by addressing a letter dated 14-2-1992 for referring the disputes to arbitration by appointing an arbitrator in terms of Clause 70 of General Conditions of Contract which was part of the agreement entered into between the parties. As the matter were not referred to arbitrator by appointing an arbitrator, the petitioner was renewing his requests by addressing various letters and the respondents though promising to appoint an arbitrator, failed to do so in spite of sufficient time allowed in that regard. As such, the petitioner approached the Hon ble Chief Justice of High Court of A. P. under Section 11 (5) of the New Arbitration Act by filling Arbitration Application No. 5/96 seeking appointment of an independent arbitrator to decide the disputes relating to various claims of the value of Rs. 56,17,059-89 Ps. as enumerated in the petition schedule.

( 3 ) THE respondents filed their counter in A. A. No. 5/96 contending that the application filed under the New Arbitration Act is not maintainable as the contract work was completed and the disputes arose between the parties only when the Old Arbitration Act of 1940 was in force and that, therefore, the petition filed under the New Arbitration Act seeking appointment of arbitrator by the Chief Justice of High Court of A. P. is not maintainable. It is also contended by the respondents in their counter that the claims enumerated in the petition schedule cannot be referred to arbitration as such claims are excluded by specific clauses in the contract entered into between the parties and that such claims made by the petitioner are also unreasonable, untenable and without any basis and they cannot, therefore, be referred to arbitration. It is also contended by the respondents in their counter that as per the arbitration clause in the agreement, the authority to appoint an arbitrator to decided the disputes between the parties rests with the Engineer-in-chief, Army Head Quarters, New Delhi, which is the first respondent, that the second respondent has already taken up the matter with the first respondent for appointment of an

Click Here to Read the rest of this document