ORDER OD-1 IN THE HIGH COURT AT CALCUTTA ORIGINAL CIVIL JURISDICTION AP/275/2022 G R INFRASTRUCTURE PRIVATE LIMITED VS BRIDGE AND ROOF COMPANY (INDIA) LIMITED BEFORE:

The Hon’ble JUSTICE SHAMPA SARKAR Date: 5th March 2025.

Appearance:

Mr. Arijit Basu, Advocate Ms. Sarada Hariharan, Advocate … for the petitioner.

Ms. Neelina Chatterjee, Advocate Mr. Suvodeep Chakraborty, Advocate … for the respondent.

1. This is an application for appointment of a learned arbitrator in accordance with Clause 2.25 of the contract. Clause 2.25 deals with arbitration and conciliation. The clause provides that in case of disputes arising out of rights and obligations under the agreement, parties shall make an endeavour to resolve the dispute amicably by holding a mutual discussion. In case the parties fail to arrive at any settlement through mutual discussion, either party may refer the dispute for conciliation under the Rules of Conciliation and Arbitration under SCOPE Forum of Conciliation and Arbitration (SFCA), by making an application to the Secretariat of SOCPE Forum. The settlement arrived at between the parties in the process of conciliation shall be final. In case the dispute is not settled by conciliation, the dispute shall be referred to and finally resolved by arbitration in accordance with Rules of Arbitration of SCOPE Forum. The arbitration shall be governed by the Arbitration and Conciliation Act, 1996. The venue shall be decided by the parties. If the parties do not agree to arbitration by SCOPE, the disputing party shall opt for stipulated rules laid down under the Arbitration and Conciliation Act, 1996. The contract of the parties to the agreement shall be governed by the jurisdiction of the Calcutta High Court. In the event of any dispute and difference relating to the interpretation and application of the provisions of the contracts and commercial agreements, such dispute and difference shall be referred by either party to the sole arbitrator in the Department of Public Enterprises to be nominated by the Secretary of the Government of India in-charge of the Department of Public Enterprises. The Arbitration and Conciliation Act, 1996 shall have no applicability. Under such reference, the dispute shall be decided by the Law Secretary or the Special Secretary or the Additional Secretary authorized by the Law Secretary.

2. The facts of the case are that a notice inviting tender was floated by the respondent sometime in December 2017. The petitioner’s offer was accepted. The work order was issued on April 19, 2018 and the respondent hired a crane from the petitioner for a period of 20 months. The notice inviting tender and the work order had an arbitration clause, which has been discussed hereinabove. It is alleged by the petitioner that in the course of business, although the hiring period came to an end on February 3, 2020, substantial money remained unpaid. The petitioner has referred to almost 15 letters between 2019 and 2020, requesting for payment of the outstanding hiring charges. It appears that, the crane was also detained at the site for some time, on the allegation by the respondent that the petitioner had refused to extend the hiring period. Thus, the fact that there was a dispute between the parties over the rights and obligations emanating from the notice inviting tender as also the work order, is available from the record. According to the petitioner, the total due as on April 15, 2022 was more than Rs.56 lakhs. Finding no other alternative, by a letter dated March 17, 2021, the learned advocate of the petitioner invoked the arbitration clause and nominated a learned Advocate as the sole arbitrator. It is submitted that, upon receipt of the said letter of invocation, the respondent did not take any steps.

3. The first contention of the learned advocate for the petitioner is that, the series of communications which were made would indicate that there was neither any chance of mutual settlement or settlement by a conciliator as