MAHESH C PURI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This execution petition has been filed by the decree holder seeking execution of an award made by the Adjudicator on 27.10.2011 ostensibly on the ground that the said award has attained finality.

(2.) The judgment debtor has filed the reply/objection to the execution petition wherein preliminary submission regarding the very maintainability of the execution petition has been raised. It has been averred that the execution petition is not maintainable as the arbitration proceedings have already commenced in this case as per the provisions of Section 21 of the Arbitration and Conciliation Act, 1996 (for short 'Act'). The Adjudicator adjudicated the dispute on 27.10.2011 and further issued corrigendum on 31.10.2011. This was challenged by the judgment debtor vide his communication dated 29.10.2011 to the Chief Engineer, Mandi Zone, HPPWD, Mandi with a copy thereof to the petitioner. The copy of this letter was sent to the decree holder on his address which was given at the time of tender as well as on the address which has been given in the judgment sought to be executed. Therefore, the execution petition is not maintainable as the notice for the appointment of arbitrator was served upon the decree holder within 28 days. Consequently, the Chief Engineer, Mandi Zone, appointed an arbitrator with copy to the decree holder. The decree holder not only objected to such appointment, but gave three names which were not acceptable to the judgment debtor. Since the sole arbitrator could not be appointed with the mutual consent of the parties within 15 days, the matter was referred to the Secretary General Indian Road Congress, New Delhi for appointment of an arbitrator as per terms and conditions of the agreement which appointment is still awaited.

(3.) The decree holder has filed rejoinder to the reply wherein it has been denied that arbitration proceedings have commenced under Section 21 of the Act. It has further been averred that after the decision of the Adjudicator on 27.10.2011, the competent authority to challenge the same was the Employer i.e. the Chief Engineer and the writing of the letter by the Executive Engineer did not amount to a challenge to the said decision. It has been averred that in terms of the agreement between the parties, the challenge, if any, had to be laid by the Employer and that also by suggesting a panel of persons from whom a mutually agreeable arbitrator could be appointed. This was also required to be done within 28 days which was never done by the respondent. It has been averred that the letter dated 4.11.2011 written by the Executive Engineer was addressed to the Chief Engineer for appointing an arbitrator, but the Chief Engineer did not have any authority under the contract to unilaterally appoint an arbitrator as he had to be appointed by mutual consent of the parties. It was further averred that the unilateral appointment of the arbitrator made by the Chief Engineer vide its letter dated 3.11.2011 was in fact objected to by the decree holder vide his letter dated 9.11.2011 vide which the decree holder had also suggested the names of a few persons from whom the arbitrator could be mutually selected. The respondent, however, chose not to respond to the same within the stipulated period of 28 days and thus have lost the right to refer the matter to the arbitrator as per the provisions of Clause 25.2 and 25.4 of the agreement between the parties. It has further been clarified that the copy of letter dated 17.11.2011 was never received by the decree holder and this aspect was also pointed out by him to the Chief Engineer vide his letter dated 28.11.2011. Lastly it has been averred that as per the admitted case of the respondents themselves, the first reference to the Secretary General of the Indian Roads Congress was made by the judgment debtor only on 9.12.2011 and, that too, was not in order since the appointment of the arbitrator had to be made by the Chairman of the Executive Committee of the Indian Roads Congress as per the requirements of Clause 25.4 of the agreement between the parties. Therefore, the respondents have lost their right to refer the matter to the arbitrator and the decision of the Adjudicator has attained finality under the provisions of Clause 25.2 of the Contract.