Jammu & Kashmir High Court
Harish Gupta Age 41 Years vs Union Of India Through Secretary on 13 February, 2025
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Arb P No. 71/2024
Reserved on : 07.02.2025
Pronounced on : 13.02.2025
Harish Gupta age 41 years
Prop. M/S Harish Gupta, 149, Phase-II,
Housing Colony, Udhampur (J&K)-182101 ....Petitioner(s)
Through :- Mr. Sumit Moza, Advocate
Mr. Gourav Sadotra, Advocate
V/s
1. Union of India Through Secretary,
Ministry of Defence, New Delhi
2. 52 Road Constr. Coy. (GREF) C/o 56 APO
3. Head Quarter, 760, Border Road Task Force,
C/o 56 APO ....Respondent(s)
Through :- Mr. Vishal Sharma, DSGI
Coram: HON'BLE THE CHIEF JUSTICE
JUDGMENT
1. Heard Mr. Sumit Moza, learned counsel for the petitioner and Mr. Vishal
Sharma, learned DSGI for the respondents at length and perused the record.
2. The present petition has been filed by the petitioner seeking appointment
of an independent Arbitrator under Section 11 of the Arbitration and Conciliation
Act, 1996 read with clause 23 of Special Conditions of Contract and clause 37 of
General Conditions of Contract (IAFW-1815Z) in pursuance to tender no. CDR
35 TF/04/2021-22 to settle the disputes that has arisen between the parties.
3. Brief facts, which lead to the filing of the present petition, are that the
petitioner is the Proprietor of M/S Harish Gupta firm and vide Notice Inviting
Tender (NIT) bearing CA No. CDR-35 BRTF/ /2021-22 bearing Tender No.
CDR-35 TF/04/2021-2022 dated 08.02.2022, the Commander 35 Border Roads
Task Force invited online bids on single stage two bid system for Supply and
Stacking of Stone Aggregate 13.20 MM, 11.20 MM, 6.70 MM and COARSE
Sand at HMP Site KM 24.800 on Ramban-Gul Road for re-surfacing works on
Ramban-Gul Road and Nashri Bye-Pass Road in 52 RCC Sector under 35 BRTF
project Beacon and the cost of estimated works was fixed at Rs. 84.14 lacs; that as
per Clause 7 of NIT it was provided that the work was required to be completed
within 180 days from the date of handing over the site.
4. It is averred that the petitioner's bid was lowest and as a result was
declared as L1 and the letter of acceptance regarding the said work was issued by
Commander 35 BRTF in favour of the petitioner vide letter dated 09.04.2022. It is
further averred that in terms of the communication dated 17.05.2022, the
petitioner was directed to supply and stack the stone aggregate 13.20 MM, 11.20
MM, 6.70 MM and Coarse Sand at HMP Site as provided in the contract and the
petitioner made available the same, however, despite repeated requests the site
was not handed over to the petitioner for almost three months; that the
respondents verbally directed the petitioner to make the supplies vehicle-wise in
piece-meals as the respondents did not have a proper dumping yard and as per the
consumption of the material in the plant, the petitioner could not dump material in
a single go and the material was dumped every alternate day as per the
requirement; that the respondents have issued the impugned cancellation letter
dated 02.02.2023 for cancellation of contract and the ground taken in the said
letter was that the material was not supplied by the petitioner since 24.12.2022,
due to which the progress of the project had been stalled.
5. It is further contended that aggrieved of the cancellation letter dated
02.02.2023 issued by the respondent No. 3, the petitioner invoked the jurisdiction
of this Court under Section 9 of the Arbitration and Conciliation Act for seeking
interim relief by way of filing Arb P No. 05/2023 and this Court vide order dated
27.02.2023 passed the interim direction, whereby the respondents have been
restrained from invoking the risk and cost retendering option with respect to the
contract work against the petitioner. It is further contended that vide letter dated
12.07.2023, the petitioner requested the respondents to refer all the claims to the
Arbitrator at an earliest, however, the respondents are acting as mute spectator and
have not referred the claims before the Arbitrator till date
6. In the above backdrop, the petitioner approached this Court by preferring
the present petition seeking appointment of an independent arbitrator under
Section 11 of Arbitration and Conciliation Act, 1996 read with clause 23 of
Special Conditions of Contract and clause 37 of General Conditions of Contract
(IAFW-1815Z) in pursuance to tender no. CDR 35 TF/04/2021-22 to settle the
disputes arising between the parties.
7. Mr. Vishal Sharma, learned DSGI has resisted this petition by way of
filing detailed objections and perusal of the same would show that a dispute exists
between the parties.
8. The fact that the petitioner has raised certain claims which, according to
the petitioner, have not been addressed by the respondents, this Court is of the
view that a dispute exists between the parties, which would require resolution in
accordance with the aforementioned Clause 23 of Special Conditions of Contract
and Clause 37 of General Conditions of Contract and this court is of the view that
the dispute has to be ultimately decided by an Arbitrator.
9. Accordingly, the present petition is disposed of by appointing Maj.
General K. Gajria (Retd.), 11-K/51, Lajpat Nagar-2, New Delhi-110 024 to act
as the sole Arbitrator, who shall proceed in the matter to decide the dispute
between the parties and make an award in accordance with law after hearing the
parties and charging the prescribed fee along with incidental expenses, as per
applicable guidelines and rules, to be shared by the parties.
10. Parties may raise their claims and counter claims before the Arbitrator.
11. Registry to inform the learned Arbitrator accordingly.
12. With the above observation and direction, the petition stands disposed of.
) (Tashi Rabstan)
Chief Justice
Jammu:
13.02.2025
Pawan Angotra
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No
