Jammu & Kashmir High Court - Srinagar Bench
M/S Damodar Ropeways & Infra Ltd. ... vs Jammu & Kashmir State Cable Car ... on 25 October, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Arb P No.50/2023
Reserved on :17.10.2024.
Pronounced on: 25.10.2024.
M/s Damodar Ropeways & Infra Ltd. through its
Authorized Representative, Mr Partha Kumar, Son of
Late Gour Hari Kumar, Aged about 58 years, Having
its office at onstantia, Wing A, 11 Dr U N
Bhramachari Street Kolkata-700017. ...Petitioner(s).
Through: Mr. Shariq J. Reyaz, Advocate.
Vs.
Jammu & Kashmir State Cable Car Corporation Ltd.
through its Managing Director, Corporate Head
Office Batmaloo Qamarwari Road, Near Bemina
Woolen Mills, Srinagar, J&K-700017. ....Respondent(s)
Through: Mr. Faheem Nissar Shah, GA.
CORAM:
HON'BLE THE CHIEF JUSTICE
JUDGMENT
01. The instant petition has been filed by the petitioner seeking
appointment of an arbitrator by invoking Section 11(6) of the Arbitration
and Conciliation Act, 1996 (for short the 'Act').
02. The case set up by the petitioner is that being a Public Limited
Company, was allotted the work "Design, Manufacture, Supply, Erection,
Testing and Commissioning of Detachable Grip Monocable Ropeway from
Mubarak Mandi to Mahamaya and Pulsated Ropeway from Mahamaya to
Shahabad near Bagh-I-Bahur at Jammu, J&K". On acceptance of the
tender document of the petitioner by the respondent, letter of acceptance
dated 29.08.2012 was signed and entered between the parties and an
agreement bearing No.JKSCCC/Jammu ROPEWAY/2014 dated 26 th May,
2014 was also executed interse parties. It is stated that the work on the
project commenced on 29th March, 2014 after a delay of nineteen months
because of the reasons attributable to the respondent and the same was
commissioned in the month of September, 2019. It is stated that despite
successful commissioning of the project, the bills of the petitioner duly
certified by the Project Management Consultants (RITES) have remained
unpaid. While giving details of the bills, it is submitted that the bill
certified by RITES on 20th April, 2021 to the tune of Rs.12,00,000/-, on
11th November, 2021 to the tune of Rs.2,09,08,800/- and another on 3rd
January, 2022 to the tune of Rs.80,22,812/- totaling to Rs.3,01,31,612/- are
unpaid. Besides, these bills the petitioner has furnished the details of the
payments which the respondent owes to the petitioner. It is stated that
despite numerous requests having been made for release of the due
payments in favour of the petitioner, the respondent despite the repeated
assurances has failed to release the payments to the petitioner. It is further
stated that the respondent in fact on 24.02.2022 convened a tripartite
meeting in which claims of the petitioner were considered but the said
meeting was not taken to its logical conclusion. The petitioner, therefore,
being dissatisfied with the omissions of the respondent, invoked the
arbitration clause contained in the agreement by serving a notice dated
17.10.2023 and subsequently filed the present petition before this Court on
27th December, 2023.
03. On notice of the petition to the respondent, the respondent appeared
and filed his objections to the petition. In the objections, amongst other
grounds, the respondent has disputed the claim of the petitioner on the
ground that the claim raised by the petitioner is time barred. It has further
been pleaded in the objections that the petitioner has approached the Court
directly without seeking reference of the dispute under Section 21 of the
Act, which is against the mandate as laid down by the Hon'ble Supreme
Court in catena of judgments.
04. Heard learned counsel for the parties.
05. After having heard learned counsel for the parties and while going
through the rival contentions of the parties, the issues which arise for
consideration of this court are that whether the petition is barred by
limitation and whether the petitioner has directly approached this Court
without seeking reference of the disputes to arbitration in terms of Section
06. It is settled position of law that limitation period for making an
application under Section 11(6) of the Act, 1996, is three years from the
date when the right to apply accrues. In the present case, as can be seen
from the records, one of the bills/invoices submitted by the petitioner on
27.12.2021 to the tune of Rs.8022,812/- has been verified by the RITES
being the Project Management Consultants, on 3 rd January, 2022.
Thereafter, on 24.02.2022 a tripartite meeting between the petitioner,
respondent and RITES was also convened with regard to the claims of the
petitioner in relation to the subject contract, however, the said meeting is
stated to have not been taken to its logical conclusion.
07. After perusal of the aforesaid documents, it becomes crystal clear
that the claims raised by the petitioner with the respondent were under
active consideration and finally when the respondent failed to release the
payment, the petitioner served a notice dated 17 th October, 2023 under
Section 21 of the Act upon the respondent seeking reference of the dispute
to an arbitrator. The respondent having failed to refer the matter to
arbitration, the petitioner filed the present petition under Section 11(6) of
the Act on 27.12.2023. Thus, it is evident that the present petition is in no
way barred by limitation and the same is held to be within time.
08. As observed above, the petitioner before seeking indulgence of this
Court in terms of Section 11(6) of the Act, served notice dated 17th
October, 2023 upon the respondent seeking invocation of arbitration under
Clause 25 of the General Conditions of Contract in terms of Section 21 of
the Act. Therefore, the objection raised by the respondent that petitioner
has directly approached this Court without complying with the provisions
of Section 21 of the Act is without any basis and is, as such, turned down.
09. In view of the aforesaid facts and circumstances as despite
invocation of the arbitration clause, the request of the petitioner has not
been acceded to, it is considered to be a fit case where the arbitrator is
required to be appointed by this Court. Accordingly, Mr. Justice Mansoor
Ahmad Mir, Retd. Chief Justice of Himachal Pradesh High Court, Resident
of Canal Avenue Sector-C Old Airport Road, Srinagar (Mob.
No.9419000993), is appointed as the sole arbitrator who shall proceed in
the matter in accordance with the provisions of the Act to make an award
within the time provided in the Act itself after charging the prescribed fee
along with incidental expenses to be shared by the parties.
10. The Petition is, accordingly, disposed of and the learned Arbitrator
be informed accordingly.
(TASHI RABSTAN)
Chief Justice
Srinagar
25.10.2024
Abdul Qayoom, Secy.
