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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Indrajit Mahanty, J.
M/s Rakesh Enterprises - Appellant
Versus
Union Of India - Respondent
S.B. Arbitration Application No. 100/2019
Decided on : 12-02-2021
Arbitration - Appointment of Sole Arbitrator - Arbitration and Conciliation Act, 1996, Section 11(6) - Settlement of Disputes & Arbitration - Clause 25 of the Contract
Fact of the Case:
The applicant filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of a sole arbitrator for resolving disputes arising under Contract No.27/EE/JCD-1/2013-14. The applicant relied on Clause 25 of the contract, which provided for settlement of disputes and arbitration.
Finding of the Court:
The court found that the issue of limitation raised by the respondent could be decided by the arbitral tribunal, as per the judgment of the Supreme Court in Uttarakhan Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limted. The court allowed the application and appointed an arbitrator, as agreed upon by both parties.
Issues: The main issue was the appointment of a sole arbitrator for resolving disputes under the contract, and the respondent's plea of limitation based on Clause 25 of the contract.
Ratio Decidendi: The court relied on the judgment of the Supreme Court in Uttarakhan Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limted, which held that the issue of limitation is a mixed question of fact and law and can be raised before the arbitrator. The court also considered the provisions of Clause 25 of the contract in reaching its decision.
Final Decision: The application under Section 11(6) of the Arbitration and Conciliation Act, 1996 was allowed, and an arbitrator was appointed as agreed upon by both parties.
JUDGMENT
1. Heard learned counsel for the parties.
2. The present application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed by the applicant-claimant seeking appointment of sole arbitrator for resolution of disputes arising under Contract No.27/EE/JCD-1/2013-14.
3. Learned counsel for the applicant submits that in terms of settlement, the disputes, if any, are required to be settled through arbitration as prescribed under Clause 25 of the agreement. Clause 25 of the Contract reads as under: -
Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter :
i) If the contractor considers any work demanded of him to be outside the requirement of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter.
If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer's decision, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his opinion within 30 days of receipt of contractor's appeal. If the Contractor is dissatisfied with the decision of the Chief Engineer, the Contractor may within 30 days from the receipt of the Chief Engineer's decision, appeal before the Dispute Redressal Committee (DRC) along with a list of disputes with amounts claimed in respect of each such dispute and giving reference to the rejection of his disputes by the Chief Engineer. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor's appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule 'F'. If the Dispute Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Chief Engineer for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator.
ii) Except where the decision has become final, binding and conclusive in terms of Sub-Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General of Works, CPWD
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