STONE CONCERN INFRASTRUCTURE DEVELOPMENT PVT. LTD. Vs. THE NATIONAL HIGHWAY CIRCLE NO.II PUBLIC WORKS [ROADS] DIRECTORATE

JUDGEMENT

(1.) This arbitration petition for appointment has been listed under heading 'To Be Mentioned' under direction earlier made at instance of petitioner on submission that it could be disposed of at this stage.

(2.) Mr. Mallik, learned advocate appears on behalf of petitioner and had on earlier occasion handed up Standard Bidding Document Procurement Of Civil Works Part-I : Complete Building Document of Government of India, Ministry of Surface Transport, Department of Road Transport and Highway as containing terms of contract between parties and existing arbitration agreement. On point taken earlier that this petition was premature, today he submits, Dispute Review Expert [DRE] was to be appointed by employer per terms of bid document. He relies on the following provision in bid document :

(3.) Mr. Sen, learned senior advocate, Assistant Additional Advocate General appears on behalf of respondent. Referring to clause for appointment of DRE in bid document, he submits, employer had indicated in the appendix there would be intimation later. As such, this can only be interpreted by court as agreed appointment procedure being that when concerned Engineer takes a decision, then question for review thereof by DRE arises. By letter dated 15th June, 2018 decision of concerned Engineer was sought. Said decision was rendered by letter dated 3rd July, 2018 after which petitioner contractor did not apply for review. Hence, agreed procedure had not been complied with by petitioner. He relies on judgment dated 29th March, 2019 of Supreme Court in, inter alia, Civil Appeal 3303 of 2019 [Union of India vs. Parmar Construction Company], paragraphs 42 to 44. He demonstrates from the judgment, question for consideration before Supreme Court was, in court taking necessary measure for appointment of arbitrator, on request of a party alleging failure of agreed procedure to secure the appointment, whether there must be resort to ensure that remedies provided under the arbitration agreement are exhausted? Supreme Court said, in given circumstances, first resort is to mechanism for appointment of arbitrator as per terms of contract agreed by parties. Thus, according to him, this petition is premature and should be dismissed.