JAGANNATH CHOUDHURY Vs. CHIEF ENGINEER, NATIONAL HIGHWAYS

JUDGEMENT

(1.) This petition has been filed by the petitioner-M/s. Jagannath Choudhury, under Sec. 11(6) of the Arbitration and Conciliation Act, 1996 (for short, "the Act, 1996") seeking appointment of an independent arbitrator to arbitrate the disputes between the petitioner and the opposite parties.

(2.) The case of the petitioner as set out in the petition in nutshell is that the petitioner, which is a Super Class Contractor Firm, entered into an agreement with the opposite party No.2 for executing of work i.e. 'widening of existing single lane carriageway to two lane carriageway with improvement to riding quality from 465/0 KM to 473/287 km (8.287km) of N.H.43' vide agreement No. EE NH SBDA/SBD/01/2008-09 dtd. 9/6/2008 under Annexure-1. As per the contract the said work was scheduled to be completed within 24 calendar months from the date of execution of the contract. Petitioner tried to complete the work in time, but due to certain hindrances, it could not be completed for which petitioner requested and was granted extension by the opposite parties for extension of time, and ultimately the petitioner completed the work in all respect within the extended period i.e. by 31/3/2011. It is stated by the petitioner that though the work was completed in all respect, the O.P. No.2 not prepared the final bill and returned the bank guarantee submitted by the petitioner towards performance security. As the petitioner submitted the final bills, but the opposite parties could not settle the same, petitioner approached this Court by filing W.P.(C) No. 7980 of 2014 seeking issuance of a direction to the opposite parties for payment of the legitimate dues of the petitioner. However, while disposing of the said writ petition, this Court vide order dtd. 25/4/2014 observed that sine there is an arbitration clause in the agreement between the parties, such dispute can be settled as per the arbitration clause. While the matter stood thus, the petitioner was served with a letter dtd. 11/3/2014 (Annexure-5) issued by the O.P. No.2 for recovery of the deviation amount pertaining to the execution of the work in question, against the penalty imposed on the petitioner in respect of a different contract work executed by the petitioner under the opposite parties. Challenging the said letter dtd. 11/3/2014, petitioner again moved before this Court by way of filing W.P.(C) No. 14967/2014, in which this Court disposed of the said writ petition vide order dtd. 14/8/2014 with a direction to the petitioner to file a representation before the opposite parties within two weeks, which shall be considered and disposed of by the O.Ps within three months. In compliance of that order, petitioner filed a detailed representation before the O.P. No.1 vide letter dtd. 25/8/2014 (Annexure-7) requesting the O.Ps. to settle the final bill of the petitioner in respect of the work in question without deducting the penalty amount imposed in respect of another work. In spite of that opposite parties did not settle the final bill and on the other hand they adjusted the penalty amount imposed in respect of another contract with the present final bill of the petitioner, for which the petitioner vide letter dtd. 27/10/2016 under Annexure-9 requested the opp. Party No.1 for appointment of an independent Arbitrator in terms of Clause 25 of the agreement. Since the aforesaid request of the petitioner was not considered by the O.P. No.1, the petitioner vide its letter dtd. 16/3/2017 (Annexure-10) intimated the O.P. No.1 nominating its arbitrator and requested him to appoint their arbitrator in terms of Clause 25.3(b) of the conditions of contract. However, as the opposite parties have failed to appoint any arbitrator within 30 days from the date of receipt of the letter of the petitioner, petitioner approached the Council Indian Road Congress for appointment of an Arbitrator in terms of Clause 25.3(c) of the agreement.

(3.) Mr. P. Behera, learned counsel for the petitioner submitted that there are disputes between the parties which are required to be settled through arbitration as per the conditions of the contract. Since all the procedures prescribed under Clause 25 of the General Conditions of contract were invoked by the petitioner and in spite of repeated request and reminders, opposite parties have failed to carry out their obligations by appointing an Arbitrator to adjudicate the disputes in respect of the contract in question, petitioner has been forced to file this petition under Sec. 11(6) of the Act. Therefore, it is prayed that this Court may appoint an independent Arbitrator to adjudicate the disputes between the parties.