KHETAN CONSTRUCTION COMPANY Vs. STATE & ORS.

JUDGEMENT

(1.) The present writ petition has been filed by the petitioner against the order of the learned Single Judge dated 15.1.2004 (Ex.10) whereby the arbitration application No. 79/2002 preferred by him under Sec. 11 of the Arbitration & Conciliation Act, 1996 (Hereinafter to be referred in short as 'the Act of 1996') was dismissed.

(2.) The legislative intent underlying the Act of 1996, is to minimise the supervisory role of the courts in the arbitral process and nominate/appoint the arbitrator without wasting time, leaving all contentious issues to be urged and against before the Arbitral Tribunal itself. Even under the old law, common sense approach alone was commended for being adopted in construing an arbitration clause more to perpetuate the intention of parties to get their disputes resolved through the alternate disputes redressal method of arbitration.

(3.) Brief facts of the case are that the petitioner is a sole proprietorship firm and is involved in construction business. A contract was awarded by the Executive Engineer, Public Works Department, Div. I, Bharatpur in favour of the petitioner vide letter dated 30.3.1998 and the agreement was accordingly executed. As per the terms of the agreement stipulated date of commencement was 14.4.1998 and the date of completion was 13.2.1999 and according to the terms of the agreement the valuation of the contract was Rs. 19,82,537.54/- . Time was essence of the contract and accordingly the petitioner arranged labour, staff, machinery etc. which were required for the work but the reciprocal promises which were to be undertaken by the respondents were not fulfilled. Therefore, the petitioner sent letters/representations. Copies of few have been placed on record as Ex.1, 2 and 3 respectively. Since the petitioner was prevented to perform his part of the contract solely because the respondents failed to perform their obligation as per the terms of the contract and when no action was taken on the representation the registered A.D. notice was sent by the petitioner dated 22.8.2002 and demanded that as per clause 23 of the agreement the matter be referred to the Arbitration and alongwith the same enclosed a cheque amounting to Rs. 41,634. This letter dated 22.8.2002 (Ex.4) was sent through registered A.D. Post and it was received in the office of the respondents on 26.8.2002 (Ex.11). After expiry of 30 days as provided under clause 23 of the agreement the petitioner sent a. telegram dated 26.9.2002 (Ex.6) holding that since the respondents have failed to appoint the Arbitration Committee under clause 23 within a period of 30 days, their right to appoint Arbitration Committee stood forfeited and advised the bankers to stop the payment of the amount of the cheque which was enclosed by the petitioner alongwith the notice dated 22.8.2002 (ex.4), which has been placed on record. Clause 23 of the said agreement is reproduced hereinbelow :