RAM SWAROOP MEENA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE application has filed the instant application under Section 11 of the Arbitration Act, 1996 (for short, "1996 Act") for appointment of Arbitral Tribunal for adjudication of his claim and settlement of the dispute between the parties.

(2.) THE facts, in brief, as stated by the applicant are as follows:- Applicant, a Railway Contractor, was awarded a work on September 2, 1996 vide contract agreement No. W/3189/t dated October 30, 1996. THE cost of the work was Rs. 33,56,646/- and the work was to be completed till march 1, 1997. Tenth running bill of the applicant was not paid finally on the ground that the work was not completed within the stipulated period. THE applicant stated vide application dated January 31, 1998 he requested for arrangement of sleepers at site as the sleepers and blast was supposed to be supplied by Railway Administration in time. THE applicant completed most of the work for which certificate dated April 3, 1998 was issued. THE applicant vide letter dated April 12, 1998 stated that the contractor who was supposed to supply blast has not supplied a single piece of blast, therefore, the applicant cannot be penalised. THE respondents issued the letter dated April 17, 1998 to start the work otherwise the work will be completed by the other agency at the risk of applicant. THE applicant submitted that the application dated May 26, 1998. l THE applicant vide letter dated January 7, 1999 requested for the payment of due amount. THE respondents vide order dated March 18, 1999 informed that even after the letter March 26, 1998 there was no progress in the work and it was not completed within stipulated period, In such circumstances, the applicant served the notice dated June 10, 2003. THE applicant in the instant application invoking the provisions of clause 63 and 64 of the agreement has prayed for reference of the dispute to the arbitrator.

(3.) IT appears that ratio indicated by the Constitution Bench in SBP & Co. vs. Patel Engineering Ltd. (2005) 8 SCC 618, was not brought to the notice in the aforesaid case. In SBP & Co. vs. Patel Engineering Ltd. (supra) their Lordships of the Supreme Court held thus:- " The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of the judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. "