ALBERT & COMPANY, EGMORE, MADRAS Vs. THE OIL AND NATURAL GAS COMMISSION, THE SOUTHERN REGIONAL BUSINESS CENTRE, REPRESENTED BY ITS GROUP GENERAL MANAGER, EGMORE, MADRAS

JUDGEMENT

(1.) THE plaintiff has come forward with this suit seeking for an appointment of an independent arbitrator to decide the disputes between the plaintiff and the defendant.

(2.) THE learned counsel appearing for the plaintiff would submit that pursuant to the tender notice dated 22.4.89, the defendant appointed the plaintiff as its contractor for the transportation and handling of materials; that there was an agreement dated 9.8.89 between the parties in that regard; that as per the agreement, the defendant was empowered to appoint a sole arbitrator for the adjudication of all the disputes arising out of the contract; that the plaintiff has no choice in the said appointment; that the defendant extended the period of contract by six months and called for a tender for the appointment of a contractor in the place of the plaintiff; that at the request of the defendant, the plaintiff continued to perform the contractual obligations beyond 31.5.91 demanding enhanced rates quoted; that during October 1991, the plaintiff terminated the contract with the expiry of 30.11.1991; that yet the defendant extended the period of contract by 6 months from 1.12.91 to 31.5.92 on the same terms and conditions; that since the defendant arbitrarily delayed the appointment of the contractor, the plaintiff filed a writ petition No.15944/91 for the issue of writ of mandamus, wherein notice of motion was ordered; that though the plaintiff made a conditional offer to perform the contractual obligations after 30.11.91 subject to the payment of the rates quoted in the tender, the defendant did not agree for the same but insisted upon the plaintiff to carry on the obligations on the old rates, and thus, the plaintiff filed a suit in C.S.No.1435 of 1991 before this Court to set aside the certain clauses in the agreement; that this court granted an order of interim injunction in O.A.No.869/91 restraining the defendant from extending the contract; that on 20.12.91, this Court vacated the order of interim injunction; that the appeal in OSA No.5 of 1992 there from was also dismissed; that the defendant by a letter dated 8.1.92 terminated its contract with the plaintiff and by another letter dated 10.1.92 informed the plaintiff that the loss to the extent of Rs.10 lacs has been caused to it on account of the breach committed by the plaintiff upto 10.1.92; that the defendant has also threatened to invoke the bank guarantee, and hence, the plaintiff filed another writ petition in W.P.No.371 of 1992 to declare that the threatened act of the defendant is illegal; that in the said writ petition, notice of motion was ordered; that W.P.No.15944 of 1991 and W.P.No.371 of 1992 were dismissed; that the plaintiff is also having a claim for Rs.12 lacs against the defendant being the excess expenses incurred in the performance of the contract; that the adjudication of the disputes by the nominee or by an employee of the defendant is not feasible and should not be resorted to; that the same is against the principles of natural justice that no person can be a judge of his own case; that it is also pertinent to note that the disputes cannot be decided by a layman; that the defendant's nominee should not be a fit and proper person to decide such an issue; that the apprehension of bias on the part of the sole arbitrator to be appointed by the defendant is well founded; and hence, an independent arbitrator has to be appointed to decide the disputes that have arisen between the plaintiff and the defendant.

(3.) AFTER careful consideration of the rival pleadings and submissions made by the respective counsel, the court is of the view that the plaintiff's request for an appointment of an independent arbitrator cannot be granted.