M/S Shiv Shakti Builders vs The Divisional Railway Engineer ...
2022 Latest Caselaw 9513 Raj

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     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR

S.B. Arbitration Application No. 15/2019 M/s Shiv Shakti Builders, Kandoi Kunj, J-86, Parshavnath City, Pal Bye Pass, Jodhpur Through Prop. Chand Kumar Kandoi S/o Shri Jagdish Prasad, Aged 66 Years.

----Petitioner Versus The Divisional Railway Engineer (West), North Western Railway, Jodhpur.

----Respondent

For Petitioner(s) : Mr. Kuldeep Kumar Shah For Respondent(s) : Mr. Kamal Kishore Dave Mr. Dhirendra Pandey Mr. Ramniwas Harnia

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

21/07/2022

Heard learned counsel for the parties.

The present application has been preferred under Section 11

(6) of the Arbitration and Conciliation Act, 1996 for appointment

of the Arbitrator in the present case.

Brief facts giving rise to the present application are that the

petitioner entered into a contract with the Railways for performing

the certain works. On a dispute being arisen between the parties,

the applicant served a notice dated 15.03.2018 to the Divisional

Railway Engineer (West), North Western Railway, Jodhpur for

appointment of the Arbitrator which is placed on record as (Annex.

R/2). When the Divisional Railway Engineer (West), North Western

Railway, Jodhpur failed to appoint the Arbitrator, the applicant

preferred an application being S.B. Arbitration Application No.

11/2018 before this Court. This court vide judgment dated

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23.10.2018 disposed of the said application in the following

terms:-

"In view of the above discussion, the applicant having failed to comply with the necessary pre-requisite conditions for invoking provisions of Section 11(6) of the Act, the application is not maintainable and, consequently, the same is dismissed leaving itd open for the applicant to act in accordance with law."

After the decision of the Arbitration Application No. 11/2018,

the applicant served a notice/representation on 27.10.2018 to the

General Manager (North Western Railway), Jaipur for appointment

of Arbitrator to resolve the dispute between the applicant and the

respondent. In pursuance of the representation dated 27.10.2018,

the respondents failed to appoint the Arbitrator in the matter and,

therefore, the present application has been filed.

Learned counsel for the applicant submits that as per the

Clauses 63 & 64 of the contract agreement between the applicant

and the respondent, if any dispute is arisen between the parties,

the same will be resolved by appointing an Arbitrator but the

respondent failed to appoint the Arbitrator in the present case,

thus, the present application has been preferred. It is prayed that

an Arbitrator may be appointed in the matter for resolving the

dispute between the applicant and the respondent.

Per contra, learned counsel for the respondent vehemently

opposed and submits that it is not open for the applicant to move

an application for appointment of the Arbitrator as the period of

limitation has expired which is 180 days as per Clause 64 of the

contract agreement. He further submits that the liberty was

granted by this court vide order dated 23.10.2018 to the applicant

to act in accordance with law and since the applicant has failed to

approach the correct authority in the first instance, therefore, the

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applicant cannot be allowed to file representation/application for

appointment of an Arbitrator to the correct authority at this

belated stage. He further submits that as per Clause 64, the

period of limitation for approaching the appropriate authority for

appointment of an Arbitrator is 180 days and since the petitioner

failed to approach the correct authority in time, he cannot be

permitted at this stage to invoke the arbitration clause for

appointment of the Arbitrator.

Learned counsel for the respondent has relied upon the

judgments of Supreme Court in case of Union of India & Ors.

vs. M/s. Onkar Nath Bhalla & Sons reported in 2009 0

Supreme (SC) 755 and Wild Life Institute of India,

Dehradun, Appellant vs. Vijay Kumar Garg, Respondent

reported in 1997 0 Supreme (SC) 801 1997 10 SCC 528.

I have considered the submissions made at the Bar and gone

through the record of the case.

Admittedly, the arbitration Clause 63 & 64 of the contract

agreement exists between the applicant and the respondent as

and the same is not disputed by the parties before this Court. It is

also noted that in the earlier round of litigation, the application

preferred by the applicant was decided by this Court on

23.10.2018 and a liberty was granted to the applicant to act in

accordance with law. It is clear that the applicant was not right in

making the request of appointment of an Arbitrator to the

Divisional Railway Engineer (West), North Western Railway,

Jodhpur as the proper authority was General Manager (North

Western Railway), Jaipur. After the decision of this Court

23.10.2018, the applicant made a representation/application for

appointment of the Arbitrator as per Clause 64, the same by no

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stretch of imagination can be treated as time barred as the

applicant was prosecuting his remedy and at no point of time, the

application so made by the applicant at earlier occasion to

Divisional Railway Engineer (West), North Western Railway,

Jodhpur was replied by the respondent by saying that it is not the

correct authority to appoint the Arbitrator and he should approach

General Manager (North Western Railway), Jaipur. Therefore, in

these circumstances the logical conclusion for resolution of dispute

entails that a person cannot be made remediless and, therefore,

the hypertechnical objection taken by the respondent that the

application preferred by the applicant is time barred is noted to be

rejected.

The judgments relied upon by the learned counsel for the

respondent in the present case has no application as this court on

23.10.2018 has ruled that applicant may act in accordance with

law and, therefore, the application/representation preferred by the

applicant for appointment of the suitable Arbitrator to resolve the

dispute in this case merits acceptance. The judgments relied upon

by learned counsel for the respondent are clearly distinguishable

in the facts and circumstances of the present case.

In the circumstances, the arbitration application is allowed.

Mr. G.R. Bhansali, R/o D-48 Kamla Nehru Nagar, Jodhpur is

appointed as a sole Arbitrator to adjudicate upon the dispute

between the parties in terms of arbitration agreement and as per

the Rajasthan Manual of Procedure for Alternative Dispute

Resolution, 2009, as amended up to date and also as per the

provisions of Arbitration and Conciliation Act.

The record of the case may be transmitted to the Mr. G.R.

Bhansali.

                                                                               (5 of 5)                      [ARBAP-15/2019]



                                         The     above    appointment          is    subject          to   the   necessary

                                   disclosure under Section 12 of the Act.

Needles to say that the fee of the Arbitrator will be paid as

per the Fourth Schedule of the Arbitration and Conciliation Act.

(VINIT KUMAR MATHUR),J 144-KashishS/Nitin-

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