Himachal Pradesh High Court
Email Id vs Email Id: [email protected] on 13 May, 2022
Bench: Mohammad Rafiq
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF MAY, 2022
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
ARBITRATION CASE No. 21 of 2022
Between:
M/S. UBITECH (P) LTD.
HAVING ITS REGISTERED
OFFICE AT 1D/10, BP,
NIT FARIDABAD,
HARYANA (121 001)
EMAIL ID :
[email protected]
...PETITIONER
(BY MR. ATUL KUMAR
& MR. DIVYA RAJ
SINGH, ADVOCATES)
AND
HIMACHAL PRADESH STATE
ELECTRICITY BOARD LTD.
THROUGH ITS CHAIRMAN
CUM MANAGING DIRECTOR
HAVING ITS OFFICE AT:
VIDYUT BHAWAN, HPSEB
SHIMLA - 171 004 (HP).
EMAIL ID: [email protected]
...RESPONDENT
::: Downloaded on - 17/05/2022 20:05:52 :::CIS
2
(BY MR. VIKRANT THAKUR,
ADVOCATE)
This case coming on for orders this day, Hon'ble Mr.
.
Justice Mohammad Rafiq, delivered the following:
JUDGMENT
The petitioner, which is an electrical engineering and
contracting concern, established in the year 1983, dealing in
the field of electrical engineering and contracting of EHV
Substation and Transmission Lines across India, is before this
Court by way of the instant petition under Section 11 of the
Arbitration and Conciliation Act, 1996 (for short 'the Act')
seeking for appointment of an Arbitrator to resolve the dispute
that has arisen between the parties.
2. The case of the petitioner is that the execution work
of "Restructured Accelerated Power Development and Reforms
Programme (R-APDRP) Part-B" ("Paonta Sahib Project"),
which was to be executed in two stages, was awarded to it vide
Letter of Award, dated 9th May, 2012 (Annexure P-1). For each
stage of work, two separate contracts were entered into
between the parties. The total cost of Paonta Sahib Project
was approximately ₹ 4.67 crores, out of which, the cost of
supply part was approximately ₹ 3.84 crores and the cost of
erection part was approximately ₹ 82.95 lacs. Upon receiving
the Letter of Award, the petitioner took active steps to
commence the work by procuring materials and mobilizing
.
resources. The petitioner also submitted drawings and GTPs
for the respondent's approval on 28 th August, 2012. Instead of
facilitating due execution of the Paonta Sahib Project, the
respondent deliberately delayed its execution since its
commencement as approvals for drawing and GTPs remained
pending for more than 5-6 months despite repeated reminders,
which resulted in delay in commencement of the Paonta Sahib
Project. Despite various difficulties being faced by the
petitioner in execution of the work, the sub-station work was
completed in September, 2015, however, the same could not be
commissioned as the respondent did not shut down the power
from the main grid, though, requested by the petitioner vide
various letters. The continuous shut down was provided by
the respondent only on 16th January, 2019 whereafter the line
work and sub-station was commissioned. Though, there were
various lacunae, delay, non-cooperation and casual approach
on the part of the respondent, due to which the execution of
the project was getting delayed, the respondent failed to
release the outstanding payments in consonance with the
terms of the contract and also, illegally deducted liquidated
damages and retained amounts even for those works which
were completed by the petitioner and where no defects were
.
pointed out. Despite the fact that the project is complete and
the respondent is deriving benefit out of the said project since
22nd February, 2017, the respondent has made the payment
partially and still illegally withholding the payments of the
petitioner. Though, the petitioner served legal notice, dated
13th December, 2021, which was received by the respondent on
16th December, 2021, the respondent has neither complied with
the notice nor has replied. Hence, the present petition has
been filed by the petitioner.
3. Notice of the petition was served upon the
respondent, however, no reply, as of now, has been filed by the
respondent.
4. Having regard to the rival submissions taken note of,
it is found: (i) that it is not disputed that there exists an
arbitration clause in the agreement between the parties; (ii)
that certain disputes arose between the parties and, therefore,
the existence of dispute is not doubted; (iii) that the petitioner
invoked the arbitration clause calling upon the respondents to
refer the dispute to the arbitrator; and (iv) that the
respondents have failed to act in accordance with the agreed
procedure in the arbitration agreement to refer the dispute to
the Arbitrator.
.
5. Under these circumstances, it is a fit case for making
a reference to an independent Arbitrator and this application
deserves to be allowed and the dispute referred to arbitration.
6. Accordingly, Hon'ble Mr. Justice Rajiv Sharma,
Judge (Retd.), r/o House No. 505, Sector 36-B, Chandigarh, is
appointed as an Arbitrator, after his disclosure in writing is
obtained in terms of Section 11(8) of the Act and only after
receipt thereof, shall his appointment, as an Arbitrator, come
into force.
7. On his giving consent to arbitrate the dispute
between the parties, as an Arbitrator, Hon'ble Mr. Justice
Rajiv Sharma, Judge (Retd.) shall enter into reference and
shall pass an award in accordance with law. Copy of this order
be forwarded to the learned counsel for the parties, as also to
the learned Arbitrator. The learned Arbitrator so appointed
shall be entitled to fee as per stipulation contained in 4 th
Schedule appended to the Arbitration and Conciliation Act,
1996.
8. The arbitration petition is disposed of accordingly,so
also the pending miscellaneous applications, if any.
.
( Mohammad Rafiq )
Chief Justice
May 13, 2022
( rajni )
r to
