PARMANAND Vs. STATE OF RAJ

JUDGEMENT

(1.) INSTANT application has been filed for appointment of arbitrator u/s. 11 of Arbitration & Conciliation Act, 1996 ("Act, 1996"). The facts which are culled out from the present petition are that respondent -1 issued notice inviting tenders no. 05 (World (Bank)/2005 -06 for construction of BT roads in district Jhalawar under PMGSY with World (Bank Assistance Package no. RJ -WB -19 -14. The petitioner also submitted tender for the aforesaid work and after evaluation of the tenders received the tender submitted by the petitioner being the lowest (L1) was accepted and on furnishing performance security work order no. 6006 dt. 26.09.2005 was issued and the stipulated dates of commencement & completion were 09.10.2005 & 08.07.2006 respectively and the estimated cost was Rs. 28261337/ - and an agreement to this effect was executed between the parties and that contains clause -24 in the agreement to resolve the dispute by adjudicator and if either party to the dispute is not satisfied with the order of the Adjudicator, will be at liberty to move application under clause -25 for referring decision of the Adjudicator to Arbitrator within 28 days of the Adjudicator sent decision. However, where the initial contract price as mentioned in the acceptance letter is Rs. 5 Crore and below, adjudication has to be conducted under sub -clause -25.4, at the same time, where the contract price is more than Rs. 5 Crores or the contractor is a foreign contractor, it will be governed under clause 25.3 of the agreement. The extract of Clause -24 & 25 being relevant for the present purpose reads ad infra: -

(2.) IT has been alleged by the petitioner that the work was completely executed by 08.07.2006 and a sum of Rs. 1,00,000/ - was deducted from the final bill in MD V. executed works during defect liability period and on expiry of the defect liability period request was made for refund of performance guarantee, security deposit and MD V amount, when no action was taken and the agreement contained the procedure for resolving the dispute invoking clause -24, application was submitted by the petitioner to the Adjudicator who after affording opportunity to the parties passed order on 18.01.2012 but the order passed by the Adjudicator was not acceptable to the respondent who made an application for referring the matter to arbitration by appointing Arbitrator invoking clause -25.2 to resolve the arbitral dispute.

(3.) AFTER notices of the present petition came to be served reply has been filed by the respondents but there is no defence on record to substantiate as to why the arbitrator may not be appointed in the facts of the instant case.