IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2023 CORAM THE HON'BLE Mr. JUSTICE ABDUL QUDDHOSE Arb.O.P (Com.Div.) No.50 of 2023 M.Rajkumar ... Petitioner Versus

1.The Superintending Engineer (NH), No.5, Besant Nagar, Chinna Chokkikulam, Madurai – 625 002.

2.The Divisional Engineer (NH), Door No.29, Hanifa Nagar, Sellapadi Panchayat, Dindigul – 624 005. ... Respondents Prayer: Arbitration Original Petition (Commercial Division) filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 to appoint an independent and impartial Arbitrator to adjudicate the disputes between the petitioner and the respondents in terms of the Contract Agreement having C.R. Agreement No.20/2020-2021, dated 11.12.2020 as set out under details of claims in Para No.5 above and to direct the respondents to pay the costs of this petition.

For Petitioner : Mr.A.Vikash For Respondents : Mr.A.Edwin Prabakar, Special Government Pleader (C.S.)

ORDER

This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking for an appointment of an Arbitrator.

2.The petitioner is a Contractor with the respondents. He had entered into a Contract on 11.12.2020 with the respondents. There seems to be a dispute between the petitioner and the respondents arising out of the said Contract. The petitioner had also given a Performance Bank Guarantee in favour of the respondents subsequent to the date of the Contract, i.e. on 11.12.2020. There is an Arbitration Agreement in the Contract dated

11.12.2020.

3.The respondents claim that the petitioner has committed breach of contract. They have also attempted to invoke the Performance Bank Guarantee given by the petitioner. On receipt of the said information, the petitioner had filed an Application under Section 9 of the Arbitration and Conciliation Act before the District Court at Madurai in Arb. A.No.23 of 2022 to restrain the respondents from invoking the Bank Guarantee. Admittedly, an order of interim injunction has also been granted in favour of the petitioner in the said Application and the interim injunction is still in force. Since under Section 9(2) of the Arbitration and Conciliation Act, the petitioner will have to invoke Arbitration within a period of three months, the petitioner has filed this Petition under Section 11 of the Arbitration and Conciliation Act seeking for appointment of an Arbitrator.

4.A Dispute Resolution Mechanism is provided for in Article 26 of the Contract dated 11.12.2020. The petitioner had also sent a Communication to the respondents on 01.10.2022 seeking for conciliation as per the dispute resolution mechanism. According to the petitioner, despite making requests for conciliation, the respondents had not responded to the same by appointing a Conciliator. In the aforementioned circumstances, the petitioner has contended that he has been constrained to file a petition under Section 11 of the Arbitration and Conciliation Act.

5.A counter affidavit has been filed by the respondents denying the contentions of the petitioner. They would submit that there is a separate procedure provided under the Contract for the dispute resolution. According to them, the procedure contemplated under Article 26 of the Contract has not been followed by the petitioner before filing the petition under Section 11 of the Arbitration and Conciliation Act. They would state that there is a three tier procedure for dispute resolution under Article 26 of the contract. According to them, the petitioner will have to first approach the Conciliator and if the Conciliation has failed, he will have to approach the Chief Engineer/Board of Directors and if it also fails, only then an Arbitral Tribunal can be constituted. Therefore, according to them, having not followed the procedure contemplated under Article 26 of the Contract, the present petition filed under Section 11 of the Arbitration and Conciliation Act is premature and is not maintainable. They would also state that on 09.