DEVELOPMENT MANAGEMENT TRUST Vs. RAIL VIKAS NIGAM LTD.

JUDGEMENT

(1.) THE petitioner has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of a sole independent arbitrator. Brief facts as culled out from the petition are that the petitioner is engaged in the work of collection and analysis of data for various government and non -government projects and the respondent is a public sector enterprise created to undertake project development, mobilization of financial resources and implement projects pertaining to strengthening of Golden Quadrilateral and Port Connectivity, and creating rail transport capacity on a commercial format. It is stated in the petition that on 22nd July, 2005, the respondent issued a 'Request for Proposal for Appointment of NGO' inviting the petitioner to submit its technical and financial proposals for NGO services required for implementation of the Resettlement Plan for the 'Rajatgarh -Barang Doubling Railway Line' project.

(2.) THE total value of the contract was Rs.7,04,396/ - and the duration of the contract was eight months. While the work was being executed, the respondent changed the alignment of the Railway tracks. As a result of change of alignment, the number of villages affected by the doubling project increased and the number of project affected persons was tripled due to which the project schedule could not be adhered to. On 19th September, 2006 the respondent issued a letter to the petitioner requesting it to suspend work temporarily from 20th September, 2006. By letter dated 24th April, 2007, the respondent asked the petitioner to renew the work by extending the contract for a period of three months at a monthly compensation of Rs.86,650/ -. The petitioner thereafter completed it work which was acknowledged by the respondent on 11th December, 2007. Out of the total contract value of Rs.7,04,396/ -, Rs.4,57,857/ - was paid by the respondent. A balance amount of Rs.2,46,539/ - is due and payable. The petitioner is also entitled to compensation for keeping site office operational and keeping its personnel and equipment mobilized.

(3.) NOTICE of this petition was served upon the respondent. The first submission of the learned counsel for the respondent is that the petitioner has not invoked the arbitration clause, as the petitioner itself has withdrawn the invocation of arbitration by letter dated 2nd December, 2010. After the withdrawal of the arbitration, the petitioner cannot now invoke the arbitration afresh. The said submission of the respondent is without any force. In case, the entire correspondence exchanged between the parties is read together, it appears that after sending the notice for arbitration dated 22nd October, 2010 appointing thereby Sh. D.C. Awasthi as petitioner's nominee, there was no response in writing by the respondent, rather the respondent offered to settle the dispute. Several meetings were held as recorded in the letter dated 2nd December, 2010 (Annexure -P15). In these meetings, the respondent's Officers assured the petitioner that the claim made by the petitioner would be settled after approvals. It was in that context, the petitioner wrote that the arbitration proceedings could be withdrawn if the claims were considered and settled by the respondent. Thus, the first submission of the respondent is rejected.