HARI NARAYAN KHANDELWAL Vs. SECRETARY

JUDGEMENT

(1.) The case of the applicant in this application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter 'the Act of 1996') is that work order dated 24.9.2014 was issued to it under a contract for construction of Centre of Excellence Phase - I at Chosala Village, Chaksu Tehsil, Jaipur. In terms of the general conditions of contract Clause 1.57 provided for arbitration. The clause reads as under:-

(2.) Reply to the application has been filed by the non-applicant- Indian Institute of Chartered Accountants. It has been submitted that there is no dispute can be said yet arisen between the applicant and the non-applicant inasmuch as the recommendations with regard to the computation of delay in execution of work at the instance of the applicant as evident from the completion certificate dated 5.4.2018 has not been issued by the architect nominated under the contract between the parties. The work was to be completed as per the agreement on 3.4.2016. Yet it was completed only on 30.6.2017. The non-applicant cannot in the circumstance ascertain liquidated damages to be charged and adjusted against the amounts claimed by the applicant. And in the absence thereof the amounts finally, if at all, payable to the applicant cannot be ascertained. Hence neither any payment as allegedly due to the applicant can be made nor the bank guarantee released.

(3.) From the facts on record, it is apparent that Clause 1.57 of the general conditions of contract between the applicant and the non-applicant provides for an arbitration between the applicant and the non-applicant in the event of any dispute arising from or in relation thereof obtains and has not been amicably resolved. Attempts of the amicable settlement of disputes between the parties have not been successful as is even otherwise evident from the reply to this application. Admittedly, notice for appointment of an arbitrator in terms of Clause 1.57 of the Conditions of Contract was also issued on 16.5.2018 by the applicant having nominated its arbitrator as provided for but remained unresponded to by the non-applicant inasmuch it did not nominate its arbitrator resulting in the agreed procedure for appointment of an Arbitral Tribunal under Clause 1.57 of the General Conditions of Contract having failed. Disputes as recorded above between the parties relating to the contract between them having arisen, this court has to exercise its jurisdiction under Section 11 (6) of the Act of 1996 and appoint an arbitrator.