OM PARKASH NARGOTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) CHALLENGE to the award dated 26.7.1991 passed by the the sole arbitrator Brig. V.K. Sawhney ( Rtd.), has been made by invoking the provision of sections 30 and 33 of the J&K; Arbitration Act, 1940. Briefly stated the facts leading to the passing of the award as indicated in the petition are, that the work contract was allotted to the respondent -contractor in the year 1978 and Contract Agreement No. CEJK/14/78 -79 entered into between the contractor and the Union of India. The execution of the contract was delayed. Both the parties attributed delay to each other. Hence, dispute arose between the parties, which was required to be referred to the arbitrator in terms of contractual stipulations as contained in General Conditions of Contract No. I AFW -2249. The contractor approached the High Court, seeking appointment of an arbitrator for adjudication of the dispute raised by him. Vide order dated 21.5.1987 passed in Arbitration Application No. 99 of 1987, a direction was issued by the High Court for appointment of arbitrator by the appointing authority in accordance with the contractual stipulation and consequently, one Shri P.D. Gujrati C.S.W. was appointed as sole arbitrator vide letter dated 29.7.1987. The said arbitrator resigned his appointment on 8.3.1988 and thereafter the appointing authority appointed Shri A.J. Kumaresan - CSW as new arbitrator vide letter dated 3.5.1988 to replace Shri P.D. Gujrati. The contractor again approached the High Court seeking removal of the arbitrator on the ground that the said arbitrator was not an Engineering Officer, the qualification to be possessed by an arbitrator under the terms of contract. The said arbitrator was consequently removed vide letter dated 2.11.1989 with a direction to the Union of India to appoint an Engineering Officer as the arbitrator in place of Shri A.L. Kumaresan .

(2.) IT appears that there was delay in appointment of the new arbitrator pursuant to the direction of the court and the contractor again approached the High Court seeking appointment of an independent arbitrator. While his application was pending, the appointing authority appointed one Shri A.V. Gopalakrishanan as the Sole Arbitrator. High court on consideration of plea of the contractor, appointed Brig. V.K. Sawhney (Rtd.) as independent arbitrator while removing Shri A.V. Goipalakrishanan to decide the dispute between the parties. This arbitrator entered upon the reference and both the parties appeared before him.

(3.) ON being put to notice of this petition, respondent -contractor appeared and filed his reply. On the basis of the pleadings of the parties, the court framed the following issues on 5.3.1992: