BRAHMA PRAKASH MODI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD counsel for the parties. This is an arbitration application arising out of Clause 36 of the Agreement No. 5/2005 -06 dt. 31.05.2005 (Annexure -2) wherein Clause 23 of the Rajasthan Government Agreement has been adopted for resolution of the disputes and differences arisen between the parties.

(2.) BRIEFLY , stated the facts of the case are that the applicant M/s. Braham Prakash Modi is a Partnership firm and Shri Kirodknal Modi is Partner of the firm who entered into an agreement with the non -applicants for construction of Dausa -Manoharpur Road NH -11A, Kms. 32.0 to 42.0 (Job No. 011 -A -RJ -2005 -377) vide work order No. 965 dt. 18.05.2005. The aforesaid work was awarded for Rs. 11,29,56,613/ -. The applicant executed and completed the work on 15.10.2006. Final bill of the work was prepared and paid on 15.01.2009. Final Bill of the applicant was prepared and paid but payment of the actual work executed as per site requirements and as per agreement conditions was not released. Less amount was paid to the applicant against the execution of the work which created disputes arising out of the signed agreement (Annexure -2) in between the parties. Clause -No. 23 of the agreement is Arbitration Clause "which provides for settlement of disputes by Empowered Standing Committee. The applicant requested respondents by application dt. 20.1.2011 (Annexure -5) for referring the disputes to the Empowered Standing Committee and deposited prescribed 2% fees with the application. Non -applicants did not refer the dispute to the Empowered Standing Committee. Non -applicants did not release genuine payment of the applicant and withheld payment of Rs. 2,14,16,973/ -. Therefore, this arbitration application has been filed for getting the independent Arbitrator appointed on the ground that the non -applicants have failed to refer the matter to the Empowered Standing Committed within the prescribed period of one month and also till filing of the present application on 2.2.2012 and further the applicant is entitled for appointment of independent Arbitrator.

(3.) THE applicant has filed a rejoinder to the said reply mentioning therein that when the applicant requested to the non -applicants for issuing copy of the letter along with the details which were entered in the Receipt Register at Sl. No. 2901, 2902 and 2903 under the Right to Information Act, the office of the Public Information Officer has informed that the letters received and entered in the Receipt Register at Sl. Nos. 2901, 2902 and 2903 are not available and the cheques have also not been received by the office. Out of the aforesaid entries in the Receipt Register, one is related to the present case, therefore, the applicant in the rejoinder has stated that when the letter (application) itself is not traceable, then how the cheque enclosed with the letter (application) can be traceable.