SETHI CONSTRUCTION COMPANY Vs. GANGOTRI ENTRPRIES P LTD

JUDGEMENT

(1.) This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) made on behalf of the petitioner M/s. Sethi Construction Company seeking the appointment of an independent Arbitrator.

(2.) Relevant facts leading to the filing of the present application are that respondent No. 1 M/s. Gangotri Enterprises Pvt. Ltd. (in short GEL) had entered into an agreement with the National Thermal Power Corporation Ltd. (in short NTPC) dated 1.7.1998 for the construction of Notre Dame School Building at BTPS, Badarpur, New Delhi. M/s. GEL in turn entered into an agreement with the petitioner dated 31.8.1999. Clause 5 of the agreement dated 31.8.1999 provided that all the disputes arising out of and between the parties i.e. M/s. GEL and M/s. Sethi Construction Company shall be brought before the Deputy General Manager (Civil), NTPC, Badarpur for settlement or arbitration and shall be within the jurisdiction of Delhi Court. It appears that disputes/differences had arisen between the petitioner and M/s. GEL/NTPC, the petitioner. M/s. Sethi Construction Company earlier filed a petition being A.A. No. 129/2001 in this Court against the NTPC and its officers seeking appointment of an Arbitrator within the meaning of Section 11(6) of the Act. The said petition was disposed of by a learned Single Judge of this Court vide order dated 9.7.2002, thereby holding that the petitioner was not entitled to maintain the said petition against the NTPC inasmuch as there was no privity between the petitioner and the NTPC. The Court found that the petitioner was employed as a piece rate worker by M/s. GEL and consequently the NTPC was not at all concerned with the underlying contract/agreement dated 31.8.1999 under which the petitioner had sought to invoke arbitration and appointment of an Arbitrator. The said order has become final, not being challenged by any of the parties. It is pertinent to note that M/s. GEL was not arrayed as a party in the said proceedings.

(3.) In the present petition, the petitioner has arrayed General Manager, NTPC as respondent No.2 and Deputy General Manager (Civil), NTPC as respondent No. 3 besides impleading M/s. GEL as respondent No.l. It may be noted at once that the petition is silent as to why the petitioner chose to array respondent No.2 as a party in the present petition as no averment or allegation of any overt action or inaction has been made against him. So far as respondent No. 3 is concerned, the assertion of the petitioner is that he has failed to take action on his representation.