The main legal point established in the judgment is that the appropriate remedy for non-compliance with the appointment of an Adjudicator under a contract is to approach the High Court under Section 11 of the Arbitration and Conciliation Act for the appointment of an Adjudicator or Arbitrator.

JUDGMENT :

Sharad Kumar Sharma, J.

The respondents, in pursuance to an invitation of bids for the purposes of the work called as “Renovation and Upgradation of damaged tourism assets in disaster affected district Chamoli. There were certain work packages, which were floated by the respondents, for the purposes of award of work contract in relation to the respective value of the contract and the period within which it was supposed to be completed. For example, in WPMS No. 608 of 2020, the contract, which was subject matter was an Agreement No. 10/PM/Contractor/PIU(T) dated 05.02.2016; in WPMS No. 609 of 2020, the contract, was by way of an Agreement No. 9/PM/Contractor/PIU(T) dated 05.02.2016; and in WPMS No. 610 of 2020, Agreement No. 17/PM/Contractor/PIU(T) dated 07.04.2016, which, according to the terms of the contract, in an event of arising out of any dispute in relation to the respective contracts, the Redressal Forum for deciding the dispute was provided under Clause 23 and 24 of the agreement, which are extracted hereunder:-

23. Appointment of the Adjudicator

23.1 The Adjudicator shall be appointed jointly by the Employer and the Contractor, at the time of the Employer's issuance of the Letter of Acceptance. If, in the Letter of Acceptance, the Employer does not agree on the appointment of the Adjudicator, the Employer will request the Appointing Authority designated in the PCC, to appoint the Adjudicator within 14 days of receipt of such request.

23.2 Should the Adjudicator resign or die, or should the Employer and the Contractor agree that the Adjudicator is not functioning in accordance with the provisions of the Contract, a new Adjudicator shall be jointly appointed by the Employer and the Contractor. In case of disagreement between the Employer and the Contractor, within 30 days, the Adjudicator shall be designated by the Appointing Authority at the request of either party, within 14 days of receipt o such request.

24. Procedure for Disputes

24.1 If the Contractor believes that a decision taken by the PIU-In Charge was either outside the authority given to the PIU-In Charge by the Contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the PIU-In Charge's decision.

24.2 The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute.

24.3 The Adjudicator shall be paid by the hour at the rate specified in the PCC, together with reimbursable expenses of the types specified in the PCC, and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision shall be final and binding.

24.4 The arbitration shall be conducted in accordance with the arbitration procedures published by the institution named and in the place specified in the PCC.”

2. The agreed Forum for redressal of the grievances for adjudication of a dispute would fall under Clause 23 and clause 24 of the Contract, and it would be, by virtue of the decision to be taken by the Adjudicator within the period of 14 days from the date of receipt of request and in an event if the Adjudicator does not decide the matter within the aforesaid period of 14 days or in an event if the contractor being dissatisfied with the decision of the Adjudicator, he will have a recourse left open for him as provided under clause 24.3 to be read with clause 24.4, which provides for seeking an adjudication of a dispute by an Arbitrator.

3. The learned counsel for the petitioner submitted that despite his request when the Adjudicator was not appointed under clause 23, his case will not fall under Section 11 of the Arbitration and Conciliation Act, 1996 and rather writ would be the only remedy w