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$-9 IN t HIGH COURT OF DELHI ARB.P. I44I2OII M/S DEEPA ENGINEERING CO ..... Petitioner
Through Mr Rishi Pal Singh" Adv. VETSUS BHAKR A BEAS MANAGEMENT BOARD & ANR..... Respondents
Through Mr Parinav Gupta for ll4r Pardeep Gupta, Adv.
Through Mr Rishi Pal Singh" Adv. VETSUS BHAKR A BEAS MANAGEMENT BOARD & ANR..... Respondents
Through Mr Parinav Gupta for ll4r Pardeep Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE MANIMOIIAN SINGH
ORDER t7.08.201r This petition has been filed by the petitioner under Section
11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an albitrator to adjudicate the disputes between parties.
The case of the petitioner is that the petitioner entered into a contract dated 30.0L2007 with the respondent No.l/Bhakra Beas a Management Board. The stipulated time for completion of work was ten rnonths i.e. frorn 30.01.2007 to 30.It.2007. According to the petitioner, due to fault, negligence and delay io tut ittg decision on the part of the respondent, the petitioner suffered heavy losses. The disputes a.rose between
2011:DHC:6827 'l the parties in terms of various conditions ofthe agreement and the petitioner q issued a notice dated 25.02.2010 to the respondent No.2 thereby specifying the dispute. The respondents failed to rectify and revise the inconect estimate of cluantities mentioned in "Bill of Quantities" attached with the work order dated 30.0I.2007. By notice dated 15.01.2011, the petitioner invoked the arbitration clause, i.e., condition No.3.19 of the conditions of contract to appoint a sole arbiftator. But, even after lapse of,rnore than 90 days since the invocation of arbitation clause, the respondents failed to appoint the arbitrator. Hence, the present petition.
No reply has been filed by the respohdents. The justification given by the counsel for the respondents for not appointing the albitrator is not acceptable to this Court. There is arbin'ation clause, i.o., condition NO. 3.19, which stipulates that disputes arising out of the confiact shall be settled tln'ough arbitrator. The albitration clause 3.19 of the Conditions of Contract reads as under:
3.t9 fubitation A. If any question, difference or objectiorq whatsoever shall alise in any way connected with or arising out of this instrument or the rneaning or operation of any part thereof for the rights, duties or liabilities of either party then save in so far as the decision or any such matter is herein before provided and has been so decided every such rnatter including whether its decision has been otherwise provided for and/or whether it has been finally decided accordingly, or whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights and a
C. obligations of the parties as the result of such tennination shall be referred, for sole arbitration of the nominee of the Board, who in. case of dispute involving an amount exceeding Rs.50,000/- shall give a reasoned award and his decision shall be final and binding and where the matter involves claim for the payment or recovery or deduction of money, only the arnount if any awarded in such arbitration shall be recoverable in respect of the rnaffer so referred. If the rnatter is not referred to arbitration within 180 days of the day of completion of work or payrnent ofthe final bill whichever is later all the rights and claims under the contract shall be deemed to have been forfeited and absolutely barred.
Upon every or any such reference, the cost of and incidental to the reference and award respectively shall be in the discretion of sole Arbitator so appointed who rnay determine the amount thereof or direct the sarne to be taxed as between solicitor and client or as between palty and party and shall dilect by whom and to whorn and in what manner the same is to be brone and paid.
The work under the contract shall be continued during the arbitration proceedings and no payrnent due or payable by the purchaser/Board shall be withheld on account of such proceedings."
From the aforesaid, it is clear that a binding arbitration agreement is in existence between the parties and the claims appear to be live frorn the correspondence placed on record. Since the respondents have failed to appoint an albitrator within stipulated time, the present petition is allowed. The disputes a.re referred to the arbitration, to be conducted under the aegis of Delhi High Court Arbitration Centre and its rules and the fee shall also be paid to the sole arbitator as per rules thereof Parties shall appear before the Delhi High Cowt Arbitration Centre on 01.09.2011. The
B.
-l F ( Albitrator appointed by the Delhi High Court Arbitration Centre shall give prior notice before commencing the proceedings. The petition stands disposed of A copy of the order be sent to Delhi High Court Arbitration
Centre. Dasti. rO\r-6s \,ZA-'f- > 1 MANMOHAN SINGII. J./
AUGUST I7,2OII jk T, |\
ORDER t7.08.201r This petition has been filed by the petitioner under Section
11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an albitrator to adjudicate the disputes between parties.
The case of the petitioner is that the petitioner entered into a contract dated 30.0L2007 with the respondent No.l/Bhakra Beas a Management Board. The stipulated time for completion of work was ten rnonths i.e. frorn 30.01.2007 to 30.It.2007. According to the petitioner, due to fault, negligence and delay io tut ittg decision on the part of the respondent, the petitioner suffered heavy losses. The disputes a.rose between
2011:DHC:6827 'l the parties in terms of various conditions ofthe agreement and the petitioner q issued a notice dated 25.02.2010 to the respondent No.2 thereby specifying the dispute. The respondents failed to rectify and revise the inconect estimate of cluantities mentioned in "Bill of Quantities" attached with the work order dated 30.0I.2007. By notice dated 15.01.2011, the petitioner invoked the arbitration clause, i.e., condition No.3.19 of the conditions of contract to appoint a sole arbiftator. But, even after lapse of,rnore than 90 days since the invocation of arbitation clause, the respondents failed to appoint the arbitrator. Hence, the present petition.
No reply has been filed by the respohdents. The justification given by the counsel for the respondents for not appointing the albitrator is not acceptable to this Court. There is arbin'ation clause, i.o., condition NO. 3.19, which stipulates that disputes arising out of the confiact shall be settled tln'ough arbitrator. The albitration clause 3.19 of the Conditions of Contract reads as under:
3.t9 fubitation A. If any question, difference or objectiorq whatsoever shall alise in any way connected with or arising out of this instrument or the rneaning or operation of any part thereof for the rights, duties or liabilities of either party then save in so far as the decision or any such matter is herein before provided and has been so decided every such rnatter including whether its decision has been otherwise provided for and/or whether it has been finally decided accordingly, or whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights and a
C. obligations of the parties as the result of such tennination shall be referred, for sole arbitration of the nominee of the Board, who in. case of dispute involving an amount exceeding Rs.50,000/- shall give a reasoned award and his decision shall be final and binding and where the matter involves claim for the payment or recovery or deduction of money, only the arnount if any awarded in such arbitration shall be recoverable in respect of the rnaffer so referred. If the rnatter is not referred to arbitration within 180 days of the day of completion of work or payrnent ofthe final bill whichever is later all the rights and claims under the contract shall be deemed to have been forfeited and absolutely barred.
Upon every or any such reference, the cost of and incidental to the reference and award respectively shall be in the discretion of sole Arbitator so appointed who rnay determine the amount thereof or direct the sarne to be taxed as between solicitor and client or as between palty and party and shall dilect by whom and to whorn and in what manner the same is to be brone and paid.
The work under the contract shall be continued during the arbitration proceedings and no payrnent due or payable by the purchaser/Board shall be withheld on account of such proceedings."
From the aforesaid, it is clear that a binding arbitration agreement is in existence between the parties and the claims appear to be live frorn the correspondence placed on record. Since the respondents have failed to appoint an albitrator within stipulated time, the present petition is allowed. The disputes a.re referred to the arbitration, to be conducted under the aegis of Delhi High Court Arbitration Centre and its rules and the fee shall also be paid to the sole arbitator as per rules thereof Parties shall appear before the Delhi High Cowt Arbitration Centre on 01.09.2011. The
B.
-l F ( Albitrator appointed by the Delhi High Court Arbitration Centre shall give prior notice before commencing the proceedings. The petition stands disposed of A copy of the order be sent to Delhi High Court Arbitration
Centre. Dasti. rO\r-6s \,ZA-'f- > 1 MANMOHAN SINGII. J./
AUGUST I7,2OII jk T, |\
JUDGMENT