SRI KEDAR CHANDRA PATTNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This petition is filed by the petitioner seeking for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. The relevant facts are stated for the purpose of deciding the rival legal contentions urged in this case with a view to find out as to whether the petitioner is entitled for appointment of an Arbitrator.

(2.) The undisputed fact is that on 15.7.1999 the petitioner entered into an agreement with the employer-Opposite Party for running of his Patnaik at Rameswar on payment of lease premium of Rs. 1 lac. On the petitioner depositing the required amount of Rs. 1 lac as security, the unit was handed over to him on 13.9.2000 and 17.11.2000. The lease initially was a period of five years w.e.f. 1.8.1999. The Super cyclone damaged the Panthika to a great extent for which major repairs were conducted by the petitioner with due intimation and permission from the competent authority. After executing the same, he sought for reimbursement of the expenses incurred. The same was not paid. He paid Rs. 50,000/ - towards premium for the year 2001-2002 and sought for adjustment. It is the case of the claimant that though the same was granted, yet the amount was not adjusted and the said amount of Rs. 50,000/- is demanded. However, a show-cause notice (Annexure-3) is issued against him. The petitioner submitted reply dated 6.4.2005 (Annexure-4) to the said show-cause. At the last paragraph thereof he has made a claim of Rs. 7 to 8 lacs urging various facts to promote tourism by repairing and developing Panthika at Rameswar and to refer the matter to the Arbitrator as per agreement clause-28. Clause 28 provides that all disputes arising out of lease shall be referred to the Arbitration Tribunal constituted under the Arbitration (Orissa Amendment) Act, 1982 upon which reliance is placed by learned counsel for both the parties. It is urged that after commencement of Arbitration and Conciliation Act, 1996, the matter has to be referred to the Arbitrator in accordance with the said Act. Therefore, after service of notice u/s. 21 for non-appointment, Section 11 of the Act will operate. It is further contended that in spite of receipt of the reply (Annexure-4), the opposite party did not refer the matter for arbitration though more than thirty days has elapsed in the mean time. Therefore, this petition has been filed seeking the aforesaid relief.

(3.) The opposite party has filed the statement of counter, inter alia, traversing the petition averments. At paragraph-4 it has been specifically stated that assuming for the shake of argument but not admitting there is any dispute, the said dispute would be hopelessly stale, barred by limitation and no claim is available to the petitioner. Further Mr. Mohapatra, learned Government Advocate submitted that it is not a fit case for appointment of an Arbitrator. He has referred to the averments made at paragraph-8 of the counter wherein it is stated that the petitioner took over the possession of the building on 13.9.2000 and at the time of taking over possession necessary inventory was made which was signed by the petitioner and the delivery of the premises has been made on "As is where is basis" and the petitioner had neither raised objection to take over possession of the Panthika nor raised any other objection on any ground whatsoever. As per the agreement the lessee would undertake minor repair if any with due approval of the Government and major repair will be undertaken by the opposite party/Govt. The petitioner had not taken any prior permission from the Govt, for major repair and ne had undertaken the major repair to enhance his business only. Hence the question of reimbursement of the amount alleged to have been spent by the petitioner does not arise and, therefore, the opposite party is not liable to pay the amount claimed by the petitioner.