MITTAL CONTRACTS PVT LTD Vs. IRCON INTERNATIONAL LTD

JUDGEMENT

(1.) THIS is an application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred to as 'the Act') for appointment of Arbitrator.

(2.) THE applicant was contractor in the Work of Indoor Museum at Indira Gandhi Rashtriya Manav Sangrahalaya Phase I Package II at Bhopal. This company was awarded this contract by the non-applicant. Dispute arose between the parties regarding payment of certain bills. Clause 3. 54. 1 of the agreement incorporates the arbitration clause. It is as under:-" except where otherwise provided for in the contract all questions and disputes relating to the meaning of instructions hereinbefore mentioned or as to any other question, claim, right, matter of anything whatsoever, in any arising out of or relating to the contract, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works, or these execution or failure to execute the same whether arising during the progress of the work or after completion of abandonment thereof or any matter directly or indirectly connected with this agreement shall be referred to the sole arbitration of the Managing Director of IRCON and if the M. D. is unable or unwilling to act as such, then, the matter shall be referred to sole arbitration of such other person appointed by the Managing Director, IRCON, willing to act as such an Arbitrator. There will be no objection, if the Arbtirator, so appointed is an employee of IRCON provided that the person shall not have been directly connected with the execution of the work of the project. In case the Arbitrator so appointed is unable to act for any reason, the Managing Director, IRCON, in the event of such inability, shall appoint another person to act as Arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by Managing Director, IRCON as aforesaid should act as Arbitrator. " The applicant sent letter dated 7-6-2003 to the non-applicant for appointment of Arbitrator in terms of the arbitration clause mentioned above. The Managing Director of the non-applicant Company appointed Shri S. P. Mehta, Retired General Manager, Northern Railways as an Arbitrator as per letter dated 18-8-2003 (Annexure R-2 ). The Arbitrator fixed the preliminary hearing on 27-9-2003 as per letter dated 26-8-2003. This application for appointment of Arbitrator was submitted on 23-6-2003. It is thus clear that the Arbitrator has been appointed by non-applicant Company after the submission of the application under Section 11 (6) of the Act.

(3.) SECTION 11 (6) of the Act is as under:-