Bombay High Court
Altaf Ahmed Abdul Majeed Ahmed vs Manganese Ore India Limited ... on 15 June, 2016
Bench: A.S. Chandurkar
1 mca.1075.15.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION [ARBN.] NO.1075 OF 2015
Applicant : Altaf Ahmed Abdul Majeed Ahmed,
Aged about 50 years,
Occupation : Proprietor of M/s. Altaf Ahmed,
R/o 2, Aradhana Society, Raj Nagar, Katol Road,
ig Nagpur : 440 013.
-- Versus --
Non-Applicant : Manganese Ore India Limited (MOIL),
Through the Chairman-cum-Managing Director,
MOIL Bhawan, 1-A, Katol Road, Nagpur : 13.
with
MISC. CIVIL APPLICATION [ARBN.] NO.1076 OF 2015
Applicant : Altaf Ahmed Abdul Majeed Ahmed,
Aged about 50 years,
Occupation : Proprietor of M/s. Altaf Ahmed,
R/o 2, Aradhana Society, Raj Nagar, Katol Road,
Nagpur : 440 013.
-- Versus --
Non-Applicant : Manganese Ore India Limited (MOIL),
Through the Chairman-cum-Managing Director,
MOIL Bhawan, 1-A, Katol Road, Nagpur : 13.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri S.V. Bhutada, Advocate for the applicant
Shri S.S. Ghate, Advocate for the non-applicant
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : A.S. CHANDURKAR, J.
DATE : 15
JUNE, 2016.
th
2 mca.1075.15.jud
ORAL JUDGMENT :-
01] Admit. Heard finally with consent of the learned Counsel for
the parties.
02] These applications have been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 (for short, 'the Act') praying that an
arbitrator be appointed to adjudicate the claim of the applicant in terms of
tender document dated 22/02/2012.
03] According to the applicant, he was issued two work orders,
dated 25/02/2012 and 02/08/2012 by the non-applicant. It is the case of
the applicant that in terms of said work orders, he had carried out the said
work and bills in that regard were also raised. These bills were endorsed
by the Mine Manager and other Officers of the non-applicant. On the said
bills not being paid, the applicant issued notice seeking appointment of
arbitrator in terms of Clause 46 of the tender document. As there was no
response to aforesaid notice, the present applications have been filed.
04] Shri S.V. Bhutada, the learned Counsel for the applicant
submitted that as per Clause 46 of the tender document, any dispute or
difference in respect of the agreement/work order was to be settled by way
3 mca.1075.15.jud
of arbitration. It was submitted that expressed words 'contract' and 'work'
had been defined in the tender document, which included extra or
additional work, which was to be done for completing the contract. It was
further submitted that the work in question was carried out as per the
directions of the competent authority and therefore on differences arising
in said matter, the same were required to be resolved by appointing an
arbitrator. According to the learned Counsel, the bills submitted by the
applicant were also endorsed by the Officers of the non-applicant Company
who were competent to do so. In support of his submissions, the learned
Counsel placed reliance on the judgment of the Hon'ble Supreme Court in
Arasmeta Captive Power Company Private Limited and another vs.
Lafarge India Private Limited - AIR 2014 SUPREME COURT 525.
05] Shri S.S. Ghate, the learned Counsel for the non-applicant
opposed the aforesaid submissions. According to him, the work alleged to
have been carried out by the applicant was beyond the scope of work
orders. According to him, it was specifically mentioned in the work orders
that the work was to be executed strictly as per the specifications. The bills
in question had been endorsed by the personnel, who were not competent
to direct carrying out any additional work. According to the learned
Counsel, it was the case of the applicant in the present applications that the
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work had been done as per the contract and that the applicant had acted
on the basis of assurances, which were in fact never given to him. It was,
therefore, submitted that there was no arbitral dispute which could be
referred for arbitration. The learned Counsel placed reliance on the
judgment of the Hon'ble Supreme Court in KSS KSSIIPL CONSORTIUM
VS. GAIL (INDIA) LIMITED - (2015) 4 SCC 210.
06] I have heard the respective Counsel for the parties and I have
perused the documents placed on record. There is no dispute that there is
a clause for arbitration at Sr. No.46 of the tender document. As per the
said clause, any dispute or difference with regard to the agreement/work
order had to be settled by arbitration. It is further stipulated that the
arbitrator is competent to decide whether the dispute or difference referred
to him was covered by the arbitration clause. While it is the case of the
applicant that the work in question has been carried out as per the work
orders which also stipulate certain modifications, alterations or additional
items to be permissible, it is the case of the non-applicant that the work in
question does not fall within the work orders and therefore, the arbitration
clause is not attracted. The Hon'ble Supreme Court in Arasmeta Captive
Power Company Private Limited (supra) has held in clear terms that while
dealing with an application under Section 11(6) of the Act, the Court is not
5 mca.1075.15.jud
expected to adjudicate on the aspect as to whether a dispute relates to
excepted matters under the agreement in question or not.
07] In the present case, it is the very exercise which is sought to be
got adjudicated by the non-applicant. In KSS KSSIIPL CONSORTIUM
(supra), it has been observed that the existence of a claim and denial
thereof giving rise to a dispute is required to be determined on the basis of
what the parties had agreed upon as embodied in the terms of the contract.
In the present case, the applicant by relying upon the work orders is
justifying the work carried out, while the non-applicant by relying upon on
the same work orders seeks to deny the entitlement of the applicant. In the
light of the law laid down in Arasmeta Captive Power (supra) this exercise
is not permissible while considering an application under Section 11(6) of
the Act.
08] Thus considering the work orders dated 02/08/2012 and
25/02/2012 and arbitration Clause 46 in the tender document, it is clear
that a case for appointment of arbitrator has been made out.
09] In view of aforesaid, the following order is passed :
The applications are allowed. The dispute between the parties
are referred for arbitration. In view of provisions of Section 12(5) of the
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Act and with consent of learned Counsel for the parties, Shri A.R. Patil,
Advocate is appointed as sole Arbitrator as per Clause 46 of the tender
document.
The parties shall act accordingly. No costs.
*sdw
ig JUDGE
