Orissa High Court
ARBP/70/2017 on 22 January, 2021
ARBP No. 70 of 2017
15. 22.01.2021 1. This matter is taken up by video conferencing mode.
2. Heard Mr. N.K. Sahu, learned counsel for the Petitioner
and
Mr. S. Dwibedi, learned counsel for the Opposite Party.
3. The present petition under Section 11(6) of the Arbitration
and Conciliation Act, 1996 ('Act') seeks the appointment of
an Arbitrator to adjudicate the disputes between the
Petitioner and the Opposite Party arising out of the work
order dated 12th November, 2014 under which the Petitioner
was assigned the work for "External Painting of 1400 NB
pipe after shot Blasting for underground and above ground
pipe at Kalinganagar".
4. The case of the Petitioner is that despite issued notice to
the Opposite Party for appointment of an arbitrator in terms
of the arbitration clause contained in the work orders, the
Opposite Party has not agreed.
5. Four objections are raised by learned counsel for the
Opposite Party to the relief being granted as prayed for. First
he states that for three different work orders one common
petition could not be filed and there shall be three petitions.
The Court considered this to be a mere technical objection.
There is no harm in appointing one arbitrator to adjudicate
all the disputes arising out of the three work orders, which
have arbitration clauses, considering that the disputes are
between the same parties. The said objection is therefore
overruled.
6. The second objection is that there is only one work order
in which an arbitration clause exists. In the other two work
orders to which learned counsel makes a reference, there are
in fact arbitration clauses, which read as under:
"12. DISPUTES:
Any dispute, if so arising regarding contractual
issues shall in the first instances are amicably
resolved through offices of project
controller/project manager. However, any matter
all disputes which remain unresolved mutually
shall to the satisfaction of the parties may be
referred to arbitrator as per arbitration act 1996
and jurisdiction of Civil Courts in Bhubaneswar
only."
7. Thridly, learned counsel for the Opposite Party relied on a
judgment dated 4th April, 2004 of this Court in ARBP No.57
of 2011 (Ramesh Chandra Samantaray v. Executive
Engineer, Rural Works Division) to urge that unless the
clause states that the decision of the arbitrator will be final
and binding, it cannot be treated as an arbitration clause. The
Court finds that the wording of the arbitration clause in the
three work orders, leaves no manner of doubt that the
intention of the parties is that the decision of the arbitrator
shall be binding. This of course will not take away the right
of either party to challenge the Award, if so warranted, in
accordance with law.
8. Lastly, learned counsel for the Opposite Party states that
the clause envisages that the parties should first try to
amicably resolve the dispute through negotiation, whereas
that did not happen here.
9. The present petition has been pending since 2017 and the
work order was issued even earlier. In spite of there being
enough opportunity even for the Opposite Party to resolve
the dispute amicably, till date the dispute has remained
unsettled. The Court therefore, finds no merit in the last
contention of the Opposite Party, either.
10. Although the arbitration clause in one of the work orders
envisages the appointment of an arbitral tribunal, the clauses
in the other two envisage a sole Arbitrator. Considering that
the Opposite Party is in any event not agreeing to act on the
said clause, the Court considers it appropriate to direct that
the disputes arising out of the three work orders shall be
referred to a sole arbitrator. No prejudice can be said to be
caused to the Opposite Party on that score.
11. The Court accordingly appoints Mr. Manoj Mishra,
learned Senior Advocate of this Court as an Arbitrator to
adjudicate the disputes between the parties. The arbitration
shall take place under the aegis of the High Court of Orissa
Arbitration and Mediation Centre.
12. The arbitration petition is disposed of accordingly. A
copy of this order be communicated to the learned
Arbitrator.
13. As restrictions are continuing for COVID-19, learned
counsel for the parties may utilize the soft copy of this order
available in the High Court's website or print out thereof at
par with certified copy in the manner prescribed, vide
Court's Notice No.4587, dated 25th March, 2020.
( Dr. S. Muralidhar )
Chief Justice
S.K.Jena/PA
