The pre-arbitration procedures under the arbitration clause are not always mandatory, and the court may refer disputes to arbitration if the requisites of arbitrability and notice under the Arbitration Act are fulfilled.

ORDER

Chandra Dhari Singh, J. (Oral)

1. The instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter "the Arbitration Act") has been filed on behalf of the petitioner seeking the following reliefs:

"i. To appoint an Arbitrator in exercise of power under 11(6) of the Arbitration and Conciliation Act, 1996, to adjudicate upon and decide all the disputes between the Petitioner and the Respondent particularly in respect of issues relating to non payment of running account bills submitted by the petitioner and alleged illegal demand of recovery by the Respondent.

ii. Pass any other or further Orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

2. The learned counsel for the petitioner submitted that the parties before this Court executed Agreement 01/EE(E)/IPBPED/2012-13 dated 7th August 2012 for construction of Indira Pariyavaran Bhavan for the Ministry of Environment and Forest at Aliganj, Jor Bagh, New Delhi. It is submitted that the general character and the scope of the work to be carried out under the Contract was to design, supply, erect, testing, commissioning of the required solar photo voltaic power plant.

3. It is submitted that the respondent vide certificate of completion dated 20th December, 2013, certified that the petitioner successfully completed the contract work. During the course of the work, the petitioner, vide letters dated 28th June 2014, 10th October 2014, 20th January 2015, 22nd December 2015, and 17th December 2016 informed the respondent about the several factors responsible for the less generation of solar power as compared to the estimated generation, and subsequently, disputes arose between the parties regarding the same.

4. It is submitted that the petitioner vide its letter dated 11th November 2016, requested the respondent not to make any recovery against the energy generation shortfall till the issue is amicably resolved. However, the respondent vide its letter dated 20th December 2016 refused to accede to the request of the petitioner.

5. The learned counsel further submitted that the petitioner furnished the first and second running accounting bills to the respondent and also requested the respondent to resolve the issues relating to non-payment of the running accounting bills. Instead, the respondent vide its letter dated 14th December 2021 directed the petitioner to pay a sum of Rs. 3,50,20,983/- towards the recovery amount for shortfall in generation of solar power.

6. Thereafter, the petitioner vide its letter dated 26th May 2022 requested the competent authority to initiate the process of appointment of arbitration as per Clause 25 of the General Conditions of Contract (hereinafter "GCC"). However, on 24th December 2022, the respondent issued another Demand Notice towards the alleged recovery amount. Again, on 9th September 2022, the petitioner requested the DRC to expedite the resolution process and the appointment of an arbitrator. It is submitted that the Dispute Redressal Committee (hereinafter "DRC") failed to address the pending issues between the parties relating to the non-payment of running accounting bills and the alleged recovery of amount.

7. By way of an additional affidavit, the amended GCC of 2010 have been brought on record by the petitioner. It is submitted that vide slip no. 3 of GCC 2010, the Clause 25 of the same was amended, which provides that, if the DRC fails to give its decision within the stipulated period or any party is dissatisfied with the decision of the DRC, then either party may within a period of 30 days from the receipt of the decision of DRC give notice to Chief Engineer for appointment of an arbitrator. It is also submitted that DRC even after 90 days from the filing of appeal/claim on 9th September 2022 expired on 8th December 2022.

8. Therefore, the petitioner is before this Court praying that an arbitrator may be appointed to adjudicate the disputes betwe