R VENKAT REDDY HYDERABAD Vs. UNION OF INDIA

JUDGEMENT

(1.) ORDER :The applicant filed the present application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('the Act' for brevity) seeking appointment of an Arbitrator for resolution of the dispute between him and the first respondent.

(2.) The applicant who is a railway contractor entered into an Agreement No.SK/ 4 dated 10.4.1989 for the work of supplying, stacking and loading into track 50 mm guage stone ballast between MLY-CHE Stations. According to the applicant, although he made all necessary arrangements for completing the work within six months, due to delays and default on the part of the Railways the work was prolonged. After the necessary correspondence between the parties, the applicant dumped into track the entire quantity of ballast. He informed the second respondent that about 95% of the agreement quantity of ballast was already supplied and dumped into track but payment for the dumped quantity was yet to be made and until the said payment was made, the balance quantity could not be collected further as per extent Rules. Therefore, extension was granted till 31.3.1996 for completing the balance work. The applicant, therefore, by his letter dated 10.3.1997 requested the second respondent to arrange payment and extend the contract period up to 30.6.1997 if the balance supply is still required. However, there was no reply. After sending several reminders, the applicant sent final reminder dated 27.8.2001 to the respondents. The second respondent, however, by his letter dated 11.9.2001 advised the applicant to attend the Assistant Engineer's Office to sign the measurement books and bill copies duly submitting the Mineral Revenue Clearance Certificate for submission of final bill and also advised to give no dues no claim certificate to release E.M.D. and S.D. etc. In reply thereto, the applicant sent a letter dated 27.9.2001 informing the respondent that the amounts due are not paid, Mineral Revenue Clearance Certificate would not have been warranted, had the Department made the payment for dumping in January, 1993 and further that as per the agreement Mineral Revenue Clearance Certificate is required for on account bill and the Department could recover the seigniorage charges at Rs.2.50 ps. per 1 M3 prevailing at that time. However, there was no further reply. The applicant, therefore, sent a reminder dated 11.12.2001 and when there was no reply, he got a notice dated 8.7.2002 issued to the second respondent marking a copy thereof to the first respondent requesting early payment or otherwise to refer the matter to arbitration. As usual, there was no response. Hence the present Arbitration Application.

(3.) The respondents resisted the application by filing a counter. It is averred inter alia that the petitioner was expected to complete the work by 3.10.1989 but the period of agreement was extended from time to time up to 31.8.1992 at the request of the applicant.. Further the applicant supplied the quantity of 1759.489 M3 against 2000 M3. Thus, the applicant has not supplied the full quantity of ballast. He was silent up to 27.11.1995 and requested for extension of time up to 31.3.1996. Again he was silent up to 14.05.2001 and by his letter dated 14.5.2001 requested for final payment and release of security deposit. As per Clause 15 of the special conditions for supply of materials, the applicant has to submit the Mineral Revenue Clearance Certificate. As such the final bill could not be processed due to non-submission of MRCC and non-signing the bill and measurement book. The petitioner thus failed to complete the work fully, failed to sign the measurement book, bills and failed to submit MRCC, no dues, no claim certificate and, therefore, the appointment of Arbitrator by the respondents is found not necessary.