(1.) The instant petition filed under Section 11 (5) of the J&K Arbitration and Conciliation Act, 1997 (for brevity the Act) prays for appointment of an independent Arbitrator in respect of dispute emerging from the contract concerning allotment of work vide letter dated 05.05.2004. The petitioner was allotted work of shifting of 2 Nos. prefabricated structure size 19.52 m x 4.88 m with 1.52 m wide verandah from Patimahala to Dumhai vide allotment letter no. NH/BHEP/DB/04/152 dated 05.05.2004 at negotiated rates of Rs.6.00 lacs. The case of the petitioner further is that within a period of 15 days commencing from 15.05.2004, he shifted the material as was stipulated in the allotment order in perfect conditions to the satisfaction of the Engineer Incharge. The satisfaction was recorded by him after inspection which followed the recommendation for release of 90% payment in his favour. Even the payment of Rs.4,82,560/- was released in his favour. The responsibility of watch and ward of the material till its erection at site was also on the petitioner as per the provisions of Clause 4 of the allotment letter.
(2.) The officers/officials working under the respondent have been making effort to fastening the liability on the petitioner for their own omissions and commissions which has resulted in damage to the prefabricated structure. Accordingly, a notice was issued to the petitioner on 11.01.2007 claiming that the material suffered damages at site on account of lack of proper care and by not deputing watch and ward. The damages have been assessed at Rs.1,64,144/-. After adjusting the 10% amount of Rs.80,000/- recovery of Rs.84,144/- is sought to be made. According to the petitioner, a dispute has arisen which is covered by Clause 55 of the Conditions of Contract for Civil Works' and the matter is required to be referred to Arbitration for adjudication. The petitioner issued a notice to the respondent requesting them for forwarding him a panel of Arbitrator in terms of Clause 55. He also requested that the recovery of Rs.84,144/- be kept in abeyance till the adjudication of the dispute by Arbitrator. But no panel of proposed arbitrator has been sent to the petitioner and on 09.02.2007 the respondent has refused to appoint any arbitrator. On the contrary a legal action is sought to be taken against the petitioner for recovery of the amount.
(3.) In the objections filed by the respondent, there is no serious dispute on facts. It has, however, been asserted that as per terms and conditions it was the responsibility of the petitioner to employ a watchman for watch and ward of the material till it was erected on the site. On account of withdrawal of the watchman, the material at the site was damaged and has also been stolen. The letter no. NH/BHEP/CE/05/892 dated 21.09.2005 was issued to the contractor intimating him that the material was found missing and damaged from the site. Accordingly, the value of such material was assessed at Rs.1,64,144/-. The request of the petitioner is stated to have been declined in terms of Clause 34 of the general conditions of the contract which imposes an obligation on the contractor to take full responsibility of the material to prevent any loss or damage to it. Therefore, the unilateral act of withdrawing the watch and ward is breach of obligation on the part of the petitioner and he must pay for the same.