H.P. SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Sec. 11 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 ["the Act"] for appointment of an independent arbitral tribunal/arbitrator to settle and adjudicate upon the disputes arising out of a contract entered into between the parties, in terms of agreement No.26- A/c/Dy.CE/C/PTK dtd. 15/7/2009. In terms of an order of allotment dtd. 14/8/2007 issued by respondent No.3, acting for and on behalf of the President of India, work of loading, leading, unloading and stacking of railway material from Delhi, Uttar Pradesh, Haryana, Punjab, Uttranchal. Jammu & Kashmir and Rajasthan was allotted to the petitioner for a period of six months for an amount of Rs.1,41,28,309.75. The date of completion of the work was initially 13/2/2008 but the same was subsequently extended upto 30/9/2009.

(2.) It is alleged that the railways did not provide any work order so as to enable the petitioner to execute the contract in time despite the fact that acceptance letter was issued to the petitioner in the year 2007. It is submitted that the work could be started by the petitioner only in the month of August, 2008 and, accordingly, the contract period was further extended. The contract was formalized by execution of a formal agreement between the parties on 15/7/2009. It is further alleged that, though, the contract was allotted for a period of only six months, it came to be extended for more than ten years. The petitioner claims that he could execute only 50% of the work, as a result, suffered huge losses. It is, thus, case of the petitioner that due to acts of omission and commission committed by the respondents from time to time, he was not allowed to execute the contract in terms of the agreement executed and was even forced to renew his performance guarantee, which was to the tune of Rs.2,14,960.00 and TRD of Rs.7,06,500.00. It is submitted that apart from the performance guarantee, the security deposit of the petitioner to the tune of rupees five percent of the contract value amounting approximately to Rs.4,91,456.00 was illegally retained by the respondents during the currency of the contract.

(3.) Without going much into the allegations made by the petitioner in the petition, suffice it to say that a serious dispute between the parties, arising out of the contract, arose between the parties. In these circumstances, the petitioner claims that he approached the respondents for appointment of an arbitrator in terms of Clause 64(1) of the General Conditions of Contract vide letter dtd. 4/9/2017. The respondents refused to refer the dispute to the arbitrator in terms of the arbitration clause aforesaid on the ground that the petitioner was not entitled to invoke the arbitration clause after having signed the "Supplementary Agreement" and "No Claim Certificate" vide communication dtd. 27/11/2017.