Himachal Pradesh High Court
____________________________________________________ vs H.P.State Electricity Board Ltd on 24 November, 2023
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
Arb. Case No. 595 of 2023
Date of decision: 24.11.2023
____________________________________________________
A2Z Infra Engineering Ltd. ...Petitioner
Versus
H.P.State Electricity Board Ltd. ...Respondent
of
____________________________________________________
Coram:
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
Whether approved for reporting?1
rt
____________________________________________________
For the petitioner : Mr. Sumeet Raj Sharma, Advocate.
For the respondents: Ms. Sunita Sharma, Senior Advocate
with Mr. Dhananjay Sharma, Advocate.
M.S. Ramachandra Rao, Chief Justice (Oral)
This is an Application filed under Section 11 (6) of
the Arbitration and Conciliation Act, 1996 (for short 'the Act') to
appoint an Arbitrator to adjudicate a dispute between the parties
arising out of an Agreement dt. 24.02.2012, under which a
Contract was awarded to the applicant by the respondent with the
following description:
"Design, engineering, manufacture, testing of
equipment and supply F.O.R. destination site basis of
sub-station equipment and spares for 132/33 KV 16
Whether the reporters of Local Papers may be allowed to see the judgment?
MVA (3x5.33 MVA 1-phase) substation at Gaura,
Distt. Solan (HP) on turnkey basis against tender
.
specification No. SSD-301/11:"
2. The dispute in the instant case, according to the
applicant, is a deduction made by the respondent from the bills
of
payable to the applicant of a sum of Rs.87,96,524/- allegedly
towards liquidated damages from various RA bills raised by the
applicant.
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3. The applicant contends that though the sub-station
was successfully charged by them on 30.08.2014 and was even
inaugurated by the Chief Minister of Himachal Pradesh on
01.11.2014, but on account of certain delays in completion of the
work under the Contract which were solely and entirely
attributable to the respondent, the applicant cannot be denied the
said amount by the respondent.
4. In the reply filed by the respondent, the allegation of
the applicant is disputed and a plea of bar of limitation is also
raised. But the applicant contends that the payment under the
Contract was to be made to the applicant by the respondent w.e.f.
30.10.2020 and in fact the applicant had also issued a legal notice
to the respondent to appoint an Empowered Officer to adjudicate
.
the dispute on 01.12.2020 and had also sought time for extension.
There is a response by the respondents dt. 25.03.2021 according to
which Chief Engineer (Generation) HPSEBL, Sundernagar was
appointed as an Empowered Officer for settlement of the dispute
of
and therefore, the claim of the applicant cannot be said to be time
barred.
5.
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In the instant case, the dispute between the parties
regarding the deduction of liquidated damages is a dispute which
requires adjudication and the applicant had invoked Arbitration
Clause 4.41.1 of the Agreement dt. 24.02.2012, and even issued a
notice dt. 04.04.2023 seeking appointment of an Arbitrator.
6. The issue of limitation raised by the respondent in the
factual circumstances of the case may require evidence and
appears to be a mixed question of law and fact. Therefore, in view
of the bar contained in Section 11(6-A) of the Act, which requires
this Court to confine itself to the examination of the existence of
the Arbitration Agreement, Shri D.K. Sharma, District &
Sessions Judge (Retd.), is appointed as an Arbitrator to resolve the
dispute between the parties, 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, Shri D.K. Sharma, District & Sessions
of
Judge (Retd.), R/o Village Nalvi, P.O. Khantal, Pargana Chautta,
Tehsil Sunni, District Shimla, H.P. shall enter into reference, and
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shall pass an award in accordance with law.
8. 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 4th Schedule appended to the Arbitration
and Conciliation Act, 1996.
9. The application is disposed of accordingly alongwith
pending application(s), if any.
(M.S. Ramachandra Rao)
Chief Justice
November 24, 2023
(hemlata)
