BHORUKA POWER CORPORATION LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT NO. 48, LAVELLE ROAD BANGALORE-560001 (REP. BY ITS COMPANY SECRETARY AND VICE PRESIDENT-FINANCE) Vs. KAR

JUDGEMENT

(1.) THE petitioner is before this Court praying that an arbitrator be appointed to consider the claim of the petitioner and adjudicate upon the dispute between the parties. The petitioner has referred to the work order dated 09.08.2006 as at Annexure -A which includes all aspects of the matter including the agreement entered into between the parties whereunder the provision has been made for resolution of the dispute. In that context, with reference to clause -49, learned counsel for the petitioner contends that in the event of there being any dispute, the matter is to be resolved by an arbitral Tribunal. In that context, the respondents have failed to accede to the request of the petitioner for arbitration. The petitioner is therefore before this Court seeking appointment of arbitrator.

(2.) LEARNED counsel for the respondents though does not dispute the transactions with the petitioner, but would however contend that the agreement as at clause 48 provides for settlement of disputes and only if there is failure in the internal mechanism to arrive at a settlement, the right to seek for appointment of arbitrator would arise. According to the learned counsel, it has been held by the Hon'ble Supreme Court that if the said procedure is not complete, the petitioner cannot seek for appointment of an arbitrator. Hence it is contended that the petitioner would have to first make his claim as provided under clause 48(2) before the Engineer and only on failure to settle, the question of appointment of arbitrator would arise.