DHARMENDRA SINGH Vs. BHARAT SANCHAR NIGAM LTD

JUDGEMENT

(1.) With consent of the parties, the matter is heard finally. By means of this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"), the applicant seeks appointment of an Arbitrator to arbitrate the dispute between the parties.

(2.) Facts giving rise to filing of the application briefly stated are that a Notice Inviting Tender was issued on 28-1-2009 for operation and comprehensive maintenance of Electro-mechanical Services for U.S.O.F. sites under Cluster No. 35 in Districts Dindori, Katni and Mandla. The bid submitted by the applicant was accepted and agreement was executed on 20-3-2009. On completion of the work, the applicant by a communication, dated 20-4-2012 requested the non-applicants to release the amount which according to the applicant was due to it. However, the applicant vide letter dated 21-5-2012 was apprised that it has not resorted to the specified procedure of conciliation and has put forward some claims, which are not admissible. The applicant submitted detailed statement of claim along with letter dated 22-8-2012 by which the applicant made a request to the non-applicants to appoint an Arbitrator. However, the communication sent by the applicant failed to evoke any response from the non-applicants. In the aforesaid factual background, the applicant has approached this Court.

(3.) Learned Senior Counsel for the applicant submits that from perusal of Clause 25 of the agreement, it is evident that resort to the conciliation is not mandatory and since despite receipt of communication dated 22-8-2012, the non-applicants have failed to appoint the Arbitrator, therefore, they have forfeited the right to appoint an Arbitrator. In support of aforesaid submission, learned Senior Counsel for the applicant has placed reliance on decisions of Supreme Court Dakshin Shelters Private Limited v. Geeta S. Johari, 2012 5 SCC 152 and Deep Trading Company v. Indian Oil Corporation and others, 2013 4 SCC 35. It is also urged that at the time of deciding the application under Section 11(6) of the Act, the merits of the claim cannot be looked into. In this connection, reference has been made to order of the Supreme Court in the case of Today Homes & Infrastructure Pvt. Ltd. v. Ludhiana Improvement Trust and another, passed in Civil Appeal No. 4596/2013, dated 10-5-2013 and in the case of I.T.I. Limited v. State of M.P., passed by the learned Single Judge of this Court in Arbitration Case No. 17/2010, dated 23-9-2010.