The failure to constitute a Dispute Resolution Board in a timely manner waives objections to arbitration, allowing a petitioner to seek appointment of an arbitrator regardless of work completion status.

JUDGMENT :

Tashi Rabstan, C.J.

1. The instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) is for seeking appointment of an independent sole Arbitrator.

2. The petitioner herein is the Private Limited Company registered with the Registrar of Companies under the Companies Act, 1956 with Mr. Pardeep Jain as is its Managing Director and competent person to represent, file the present petition on behalf of the company being authorized by the Board of Directors in terms of a Board Resolution. The petitioner-company is engaged in the business of construction of buildings and all connected services like roads, Electrification, water supply, Central heating, Air Conditioning etc. and is said to have successfully executed and completed various works. Moreover, the petitioner had acquired work experience and turn over from the execution of the works of similar nature and is registered as SS CLASS Contractor with Index no SS-70.

3. The facts in brief are that in response to a NIT floated by the respondents for Provn. of KLP ACCN at Samba dated 29.03.2017 (Tender Id No. 2017-MES- 113571-1) and subsequently amended and revised tender uploaded vide letter no. T-89125/78/E8 dated 04.08.2017 (Tender ID No. 2017-MES-113571-5), the petitioner was declared as a successful bidder and the order for execution of the work was issued in its favour for a lumpsum amount of Rs. 42,73,55,375.01/- (Rupees Forty-Two Crores Seventy-Three Lakhs Fifty-Five Thousands Three Hundred and Seventy-Five and Paise One only) vide CA No. CEPZ- 16/2017-18. The contract agreement for CA No. CEPZ-16/2-17-18 PROVIN of KLPACCN at Samba came to be executed between the petitioner, M/s Pardeep Electricals and Builders Pvt. Ltd., and the respondents on 14.10.2017. As per the terms and conditions of the contract, the period for completion of work was 30 months and project site was handed over on 24.10.2017 and the work at site commenced on 24.10.2017. The date of completion of work was scheduled to be 23.04.2020. The petitioner was to execute the construction of 63 Nos. of buildings out of which sites of 19 buildings were made available and rest could not be finalized by the respondents within time, thus, leading to delay in progress of the contract work.

4. The petitioner invested time, money, energy in the contract assigned, but, except assurances made by the respondents for release of the amount nothing substantial came to be done and performed from the respondents’ end. The said buildings, structures etc. were required to be constructed in accordance with the drawings and structures provided to the petitioner by the Chief Engineer. Out of 69 buildings to be constructed, the petitioner has completed 34 No’s of buildings in all respects. Action/inaction on the part of the Respondents in granting of the extension of the work in a delayed and piece meal manner led to substantial delay in completion of the work. The petitioner sought extensions from time to time but the same were granted by the Respondents for few months only and that too only once when the said period of extension was about to expire. At present the extension stands expired on 04.09.2023 and petitioner applied well in time, but, the same has not been granted till date. There has been abnormal delay on the part of Department in finalization of location of various assets to be undertaken for construction. The peti