HOSHIARA Vs. JAGDISH

JUDGEMENT

(1.) The instant petition has been filed by the petitioner seeking appointment of an arbitrator by invoking Sec. 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Act").

(2.) The case set up by the petitioner is that being a Contractor he executed the work Construction of Junction Structure RD (-17) to 100 M of Sumbal Link Channel of USHP-II Kangan on the strength of the allotment letter bearing No.USHP-II/CE/7-Works of 1989 dtd. 17/6/1989. It is stated that the work was required to be completed within one year i.e. till 31/10/1990 but due to militancy activities and non-cooperation of the department in providing the requisite drawings and the material in time, the work got delayed and was completed on 31/8/2000. It is further stated that after completion of the work, final bill for an amount of Rs.49,37,599.00 was submitted in the month of March, 2006, out of which an amount of Rs.27297.00 was paid to the petitioner and the balance amount was assured to be released in favour of the petitioner shortly. It is stated that the respondents having failed to release the balance amount in favour of the petitioner, the petitioner through his counsel issued a legal notice dtd. 1/1/2011 to the respondents. It is stated that respondents having failed to act in the matter, the petitioner again, through his counsel, approached the respondents and issued another legal notice dtd. 25/1/2022 for release of the legitimate payment and reference of the dispute to arbitrator but the respondents failed to release the same and thus, a dispute is alleged to have arisen between the parties. The petitioner has further submitted that till date neither the payment has been released in his favour nor any arbitrator, as was sought to be appointed in the matter, has been appointed by the respondents in terms of Clause 54 of the agreement entered between the parties.

(3.) On notice of the petition to the respondents, the respondents appeared and filed their objections. In the objections, amongst other grounds, the respondents have disputed the claim of the petitioner on the ground that the claim raised by the petitioner is time barred. It is stated that final payment on account of the work done along with necessary escalation was made to the contractor in terms of the conditions of the contract agreement. It is further submitted that the defect liability period as per the conditions of the contract agreement was one year from the date of completion of the work and since the work was completed on 31/8/2000, therefore, the said period has expired on 31/8/2001. The allegation of the petitioner that completion of the work got delayed because of the non- cooperation of the respondents is refuted by the respondents and it is stated that all the necessary drawings and material was provided to the petitioner in line with the conditions of the contract agreement. It is stated that though there was a huge delay in completion of the work but the same was adjusted by giving extension in time from time to time without imposing any penalty and the work got completed on 31/8/2000. The respondents submit that since all the due payment to the petitioner has been made, thus there exists no dispute between the parties. It has accordingly been prayed that the petition may be dismissed.