GAYATRI PROJECTS LTD Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Section 11 of the Arbitration and Conciliation Act, 1996 praying for a declaration that the opposite party is not entitled to refer the dispute between the parties to the Orissa Arbitration tribunal, and for a further order appointing an Arbitrator and to refer the dispute between the parties in terms of the relevant arbitration Clause to the said Arbitrator for adjudication thereof.

(2.) THE petitioner dropped a tender for the work of 'Construction of Left Afflux Bundh from Rd 630 M to 1770 M of Rengali Irrigation Sub Project W.R.C.P. Package No. 9'. The tender of the petitioner was accepted and work order was issued in favour of the petitioner, The Agreement was duly executed and signed by the parties which is at Annexure 1 to the petition. As a dispute arose between the parties, the petitioner by its letter dated 2.9.2002 made certain demand to the opposite party or to appoint an Arbitrator for referring the dispute for adjudication to the Arbitrator. In the said letter petitioner suggested some names from which one may be appointed as Arbitrator. The said request letter of the petitioner (Annexure 4) was received by the opposite party on 5.9.2002. Despite passage of more than one month since the opposite party received the aforesaid letter, no . Arbitrator was appointed and for this reason petitioner has approached this Court in this petition seeking the relief, as already stated.

(3.) PARA 25.1 of the said Agreement further provides that the adjudicator shall give a decision in writing within 28 days of receipt of the notification of the dispute. As already stated, the Adjudicator gave his decision within the stipulated period. Para 25.2 of the said Agreement further provides, inter alia, that either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision will be final and binding. Para 25.3 thereof further provides that the arbitration shall be conducted in accordance with the arbitration procedure published by the institution named and in the place shown in the Contract Data. Section 4 of the said Agreement contains the Contract Data. Amongst other things, the said Section under the ' Heading 'Contract Data' provides that the arbitration procedure of the Orissa Arbitration Tribunal shall be followed. It further provides that the arbitration will take place in accordance with the Orissa Arbitration Tribunal Act, 1979. As a matter of fact, no such Act, namely, Orissa Arbitration Tribunal Act, 1979 exists. Further there is a set of Rules, namely, Orissa Arbitration Tribunal Rules, 1979. It appears that the said Rules were framed by the State of Orissa under the provisions of the Arbitration Act, 1940, and in accordance with the said Rules the Orissa Arbitration Tribunal was established.