Tripura High Court
Ram Kripal Singh Construction Private ... vs Tripura Cricket Association & Others on 12 July, 2024
Page 1 of 19
HIGH COURT OF TRIPURA
AGARTALA
Arb.P. No.02/2024
Ram Kripal Singh Construction Private Limited
......... Petitioner(s).
VERSUS
Tripura Cricket Association & others
.........Respondent(s).
For Petitioner(s) : Mr. Paramartha Datta, Advocate,
Mr. Tanmay Debbarma, Advocate,
Mr. P. Tripura, Advocate.
For Respondent(s) : Mr. Kohinoor N Bhattacharyya, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
12/07/2024
Heard Mr. Tanmay Debbarma, learned counsel appearing for the
petitioner and Mr. Kohinoor N Bhattacharyya, learned counsel appearing for
the respondents-Tripura Cricket Association (TCA, for short).
2. Petitioner has invoked Clause-22.2 for appointment of an
independent arbitrator in respect of the dispute arising out of the agreement
dated 10.04.2017 (Annexure-1) entered into with the respondent No.1 for
construction of International Cricket Stadium at Narsingarh, Agartala, Tripura
bearing agreement No.01/TCA/AGT/TEC/17-18 for an agreed value of
Rs.185,13,18,958/- to be completed within a stipulated period of 24 months
from the date of commencement of the said work, i.e. 22.08.2017.
3. Learned counsel for the petitioner has submitted that petitioner is
a construction company engaged in Government Civil Contracts and other
road, building construction projects, highway and bridge projects etc. The first
Running Account (RA) bill along with GST was submitted by the petitioner
vide letter dated 15.03.2018 and after payment of 1 st and 2nd RA bills of
additional work, the respondent authority stopped the payment of RA bills
without any valid reason. After long persuasion, the respondent paid the said
pending RA bills up to 8th RA bill, but the 9th and 10th RA bills are still pending
amounting to Rs.16,89,24,475/- though the petitioner has completed the work
within the time limit. The construction work is still pending due to complete
inaction on the part of the respondents such as pendency of bills, availability of
work, funds, design and drawing etc. By letter dated 05.12.2018 issued by the
respondent-Association, the work was stopped. After the Covid-19 pandemic,
the progress of work got interrupted and came to a standstill till May, 2021.
Though the petitioner has approached the Executive Engineer-cum-Engineer-
in-Charge seeking payment of pending bills and in connection with long
pending disputes comprising administrative, financial and technical in nature
vide letter dated 05.11.2021 and also invoked Clause 22.1 of the Conditions of
Contract, but the Executive Engineer-cum-Engineer-in-Charge failed to give
any response within the stipulated period of 20 days. Thereafter, the petitioner
was compelled to invoke Clause 22.2 of the Conditions of Contract which
provides for an arbitration clause by requesting the respondent-President, TCA,
Agartala, West Tripura for appointment of an arbitrator for adjudicating the
matters in dispute as reflected in their financial claims at para-2.0. This letter
also remained totally unresponded. Thereafter, petitioner sent a reminder letter
to the General Secretary of the Association with a request to release the
outstanding payments. However, since the request of the petitioner made in
terms of Clause-22.2 of the agreement dated 10.04.2017 remained
unresponded, petitioner has invoked the jurisdiction of this Court for
appointment of an independent arbitrator under Section 11(6) of the Arbitration
and Conciliation Act, 1996.
4. Respondents have appeared on notice. A counter affidavit has
been filed by respondents No.1 to 3 inter alia, making the following
statements:
In reply to paragraphs-1 to 6 of the petition, it has been stated that
separate work order was issued for all the additional works awarded to the
petitioner whose value was not included in the Agreement for construction of
the International Cricket Stadium at Narsingarh. However, payments had
already been done to the petitioner for undertaking such additional works
separately.
With regard to statements made at paragraphs-7 to 9 of the
petition, it is stated that first advance payment against bills submitted by the
petitioner for an amount of Rs.10,00,00,000/- was made on 15.10.2018. The
Association took up the matter of full payment of the 1st and 2nd R.A. bills. The
agency had submitted its 3rd bill on 03.12.2020 for an amount of
Rs.3,26,24,392/- at that stage. Certain observations were made while disposing
the bills.
Accordingly, respondents had started recording measurements by
TCA officials in MB. Till action in that respect matured, payments of running
bills were allowed on the basis of submission of the petitioner-company. The
action matured at the stage of 5th RA bill and thereafter the respondents started
bill verification in terms of the agreement and those recorded in MB and
undertook adjustment of excess payments. Statement of payment of running
bills has been furnished under paragraph-4 in a tabular chart against 3rd RA, 4th
RA, 5th RA, 6th RA, 7th RA and 8th RA on different dates between 20.02.2021
till 03.03.2023. Respondents further state that during disposal of 9th RA bill, it
was found that there was an advance payment of Rs.12.99 crores against extra
item of LED light high mast proposed by the petitioner-company vide letter
dated 17.02.2023 and approval communicated by the Secretary, TCA vide
letter dated 10.03.2023 with a condition of 50% advance as against agreement
item value of Rs.25.986 crores. General Body had taken a decision to refer the
matter to Special Investigation Team constituted by the High Court of Tripura
to examine its correctness, authority and to exercise due scrutiny. Therefore, in
the review meeting dated 12.03.2024 it was decided to keep the execution of
this item stayed until further decision. It was also decided to continue the
construction work of stadium as per agreement items. Accordingly, 75% of net
payable amount against 9th RA bill has been paid for an amount of
Rs.2,33,68,952/- and only Rs.77,89,651/- is due as on date. Regarding 10th RA
bill, it is stated that the bill statement submitted to TCA on 03.12.2023 has not
been found in the office of the respondents. Learned counsel for the petitioner
submits that this bill is dated 02.12.2023 instead of 03.12.2023.
It is further stated that this bill statement has been received for the
first time as an enclosure to the petition of arbitration submitted before this
Court. In the review meeting dated 12.03.2024 the matter of payment against
10th RA bill was also discussed. Petitioner's authorized representative has not
come to the office of the respondents for its verification. The bill has been
examined and recorded in the MB by the respondent's officials on the basis of
actual work done and entitlement as per agreement. All other miscellaneous
claims including some portion which were specifically rejected earlier would
remain as not entitled and rejected.
Respondents further state that after issuance of the letter dated
08.04.2024, the authorized representative of the petitioner had attended office
of the respondents and put their signatures in concurrence to the measurement
accorded by respondent's officials and bill prepared thereon and the payment so
released.
Learned counsel for the respondents submits that the payment
against RA bills has been delayed for which respondents are not responsible at
all. Respondents have given relaxation to the petitioner by making payments
against RA bills beyond the condition of the contract, such as Clause-43:
Schedule of payment-The value of RA bills shall not be less than 10% of the
amount of agreement value. However, the decision of the Association in this
regard will be final and binding for smooth progress of the work.
In reply to paragraph-10 of the arbitration petition, it is stated that
there is no pendency of bills. Preparation of RA bills and disbursement of
payment from TCA has already been done as per progress of the work. There is
no shortage of working funds with the respondents. The respondent is
financially sound and in a position to complete the work as per agreement.
There is no shortage of design and drawing at site to continue the work as per
agreement. It is also mentioned that due to poor labour strength the work is
progressing sluggishly.
In a tabular chart under paragraph-6 of the Counter Affidavit, the
respondents have given their response to the different claims raised by the
petitioner and as considered by the respondents on 05.11.2020. It is also stated
that even after submission of the letter dated 05.11.2021, the petitioner
preferred to continue the work under constant monitoring from the respondent
side and regular running payments inclusive secured advance were given at
different intervals.
Learned counsel for the respondents has also referred to Clause-
22.1 and Clause-22.2. Clause-22.1 relates to request before the Engineer-in-
Charge for adjudication which should be responded within 20 days time of the
date of written notice. It is contended that petitioner submitted his letter on
05.11.2021 way back in the year 2021 under Clause-22.1 but in the absence of
any decision by the Engineer-in-Charge in writing within the period of 20 days,
the petitioner had submitted a letter on 06.12.2021 invoking Clause-22.2 of the
agreement beyond the 15 days appeal period as per Clause-22.2. The
respondents have sent a reply on 12.01.2022 responding claim-wise to the
petitioner. Petitioner had again after two years made a request on 02.12.2023 to
the General Secretary wherein he had only put forward his claim before the
respondents and nowhere referred to his request for appointment of arbitrator
which is contrary to the agreement. Therefore, the present reference by the
petitioner for seeking arbitration by linking the letter dated 05/06.11.2021 is
not maintainable at the present stage. If the petitioner has any legitimate point
of dispute, he can complete the work or determine the contract and make fresh
application for the arbitration under Clause-22.1. That will provide equal
opportunity for presenting claims and counter claims on issues of disputes, if
any, by both the parties.
Respondents have under paragraph-9 of the counter affidavit
given their comments on the total number of 11 claims submitted by the
petitioner which are extracted hereunder:
Sl. Description Claim Amount Comments of the Respondents
No.
1. Balance payment Rs.03,48,72,333.00 As on date only Rs.77,89,651.00 is
of 9th RA balance
2. Payment against Rs.13,40,52,142.00 Bill submitted by RKSCPL has
10th RA been verified in terms of actual
measurement and entitlement in
terms of Agreement. Correct value
of bill is Rs.6.68 crores. After
adjustment of recoveries payable
amount is Rs.3.29 crores. 80%
payment already done. As on date
only Rs.65,90,405.00 is due.
3. Payment against Rs.08,56,80,112.00 This claim is on extra item of work
Secured Advance on LED light installation in
substitution of Agreement item for
Metal Halide light, of course, for
the same level of illumination/
brightness as essential for cricket
matches. The validity of this extra
item is under question on
correctness in terms of the
agreement. The matter would be
reviewed towards correctness in
terms of the agreement and referred
to Special Investigation Team
constituted by the High Court of
Tripura.
Pending Investigation by SIT
and review toward correctness the
execution of this extra item has
been kept stayed.
An advance for an amount of
Rs.12.99 crores has been paid
against the extra item, as put under
question as said above, the advance
payment is much higher than this
claim of secured advance by
RKSCPL. So, there are 3 issues-
i) Approval of the item itself is
not tenable in terms of the
Agreement.
ii) The advance payment already
made is recoverable from
RKSCPL.
iii) Work has to be executed as
per agreement item specification.
LED light may be taken back by
RKSCPL.
4. Payment against Rs.02,16,23,702.00 Rust removal is already included in
rust removal the compensation allowed for idle
time for suspension of work. The
total agreed compensation value
has already been paid, though
RKSCPL yet to give final statement
of actual work loss.
5. Payment against Rs.04,22,35,245.00 As per decision taken in the
SD meeting dated 05.11.2020, TCA
reviewed the matter and found that,
the circular of GOI is not applicable
for TCA. Hence, TCA denied the
request.
6. Payment against Rs.01,18,80,990.00 It is under examination in accounts
wrong calculation section of TCA.
of account section
of TCA
7. Payment against Rs.41,16,59,835.00 As per provision of the Agreement
GST all taxes and levies are included in
the rate quoted by RKSCPL.
Hence, this item also not eligible
for payment. It is mis claim.
8. Payment against Rs.24,78,91,297.00 Compensation due to price
Escalation as per variation for 15 months of work
10CC & 10CA suspension period has already been
allowed. The agreement is for fixed
and firm price. Therefore, price
variation is not eligible in terms of
the agreement. The agreement has
no provision for 10CA & 10CC as
used by RKSCPL in its claim.
9. Payment against Rs.21,29,81,316.00 An amount of Rs.5.50 crores has
Idle charges been paid to RKSCPL for idle of
resources for held up of work for
15 months. After that there is no
idling of resources, only there is
delay of work for reasons
attributable to RKSCPL.
10. Payment against Rs.51,57,26,877.00 TCA has not withdrawn from the
Opportunity losses contract. RKSCPL has already
executed work for an amount of
Rs.114.00 crores out of total
tendered amount of Rs.185.00
crores and on work for the rest of
work slowly. So, there is no
question of opportunity loss on the
part of RKSCPL. Rather TCA has
suffered opportunity loss.
11. Payment against Rs.12,45,01,955.00 This is a fictitious claim without
other claims any foundation.
At paragraph-10 of the counter affidavit, they have also given a
brief counter claim against the petitioner which are as under:
(i) Penalty for delayed performance under clause no.46 (GCC)-Rs.18,51,31,896.00
(ii) Return of compensation paid against agreement
dated 05.11.2020 as performance schedule has
not been maintained- Rs.13,00,00,000.00
(iii) Opportunity loss by losing scope of 2(two) international
matches and 2 IPL matches- Rs.70,00,00,000.00
(iv) Due interest on mobilization advance- Rs. 1,14,51,900.00
(v) Payment of consultant due to holding of work- Rs. 1,50,00,000.00
(vi) Loss of income tax relief for such delayed payment- Rs.11,00,00,000.00
(approx.)
(vii) Loss due to idle investment loss of interest- Rs.27,65,00,000.00
(approx.)
(viii) Loss due to underutilization of TCA Staff,
vehicle & monitoring expenses- Rs. 5,00,00,000.00
Total=Rs.147,80,83,796.00
Based on these averments, learned counsel for the respondents
submits that the instant arbitration petition has been preferred after two years of
the invocation of Clause-22.2 by the petitioner on 06.12.2021 before the
President, TCA. As such, the claim is not alive. This Court in such
circumstances should not exercise its jurisdiction under Section 11(6) of the
Act to appoint an arbitrator as there is no explanation for invoking the
jurisdiction of this Court after about two years of delay. Learned counsel for
the respondents further submits that certain claims have been added in the
request letter dated 06.12.2021 which were not initially claimed. As such, those
claims are beyond the purview of reference to the learned arbitrator. Learned
counsel for the respondents further submits that the work has not yet been fully
executed. Payments have been made in favour of the petitioner from time to
time. The respondents have also taken steps to address the grievances and
claims raised by the petitioner which are genuine over a period of time. As
such, the cause of action is not ripe for reference of the dispute to an
independent arbitrator. After about two years of issuance of a letter of request
made under Clause-22.2 to the President, TCA, petitioner has made a
representation to the General Secretary, TCA instead of the appropriate
authority. As such, petitioner is himself not clear as to the arbitrability of the
disputes being raised.
5. Learned counsel for the petitioner has, in reply, straightway relied
upon the decision rendered by the Apex Court on the question of delay in
approaching the Court rendered in the case of M/S Arif Azim Co. Ltd. Vrs.
M/S Aptech Ltd. [Arbitration Petition No.29 of 2023 decided on 01.03.2024].
He has referred to paragraphs-52 and 53 of the judgment wherein the Apex
Court has dealt with the issue as to when does the right to apply under Section
11(6) accrue. It has been held that the limitation period for filing an application
seeking appointment of arbitrator commences only after a valid notice invoking
arbitration has been issued by one of the parties to the other party and there has
been either a failure or refusal on the part of the other party to make an
appointment as per the appointment procedure agreed upon between the
parties. It has been further held that since no specific period of limitation has
been prescribed for making a request under Section 11(6) to the Court to take
the necessary measure for appointing an arbitrator, therefore, Article 137 of the
Limitation Act, 1963 which provides the limitation period of three years for
filing any other application for which no period of limitation is provided
elsewhere being a residuary article can be applied. The present arbitration
petition was filed on 25.01.2024 which was well within the time period of 3
years provided by Article 137 of the Limitation Act, 1963 from the date of the
first notice invoking Clause-22.2 on 06.12.2021 to the respondent-President,
TCA. He submits that the present case is fully covered by the ratio rendered in
the case of M/S Arif Azim Co. Ltd. (supra) by the Apex Court. It is further
submitted that the averments in the counter affidavit filed by the respondents
only give an indication that the dispute arising out of the agreement dated
10.04.2017 exists. Since the agreement under Clause-22.2 provides for an
arbitration clause, which the petitioner has invoked vide letter dated
06.12.2021, the present petition is wholly maintainable. It is further submitted
that this Court in an application under Section 11(6) of the Act is not required
to enter into the merits of the dispute between the parties as it lies within the
sole jurisdiction of the arbitrator. Parties are at liberty to raise their claims and
counter claims which have to be determined in accordance with law on the
basis of the pleadings and evidence produced by the parties. Therefore, this
Court may appoint an independent arbitrator to decide the dispute between the
parties in terms of Clause-22.2 of the agreement.
6. I have considered the submissions of learned counsel for the
parties and also taken note of the pleadings placed from the record in the
foregoing part of the order.
The agreement dated 10.04.2017 was executed between the parties
for construction of an International Cricket stadium at Narsingarh, Agartala,
Tripura for agreed value of Rs.185,13,18,958/- to be completed within a
stipulated period of 24 months from the date of commencement of the said
work is accepted by both the parties.
7. Clause-22 relates to settlement of disputes and is extracted
hereunder:
"22. Settlement of disputes:
22.1 If any dispute or difference of any kind whatsoever arises
between the department and the Contractor in connection with, or arising out
of the Contract at stage, whether during the progress of the works or after
their completion and whether before or after the termination, abandonment or
breach of the contract, it shall in the first place, be referred to and settled by
the Engineer-in-charge who shall, within a period of twenty days after being
requested by the Contractor to do so, give written notice of his decision to the
Contractor. Upon receipt of the written notice of the decision of the Engineer-
in-Charge the Contractor shall promptly proceed without delay to comply
with such notice of decision.
22.2 If the Engineer-in-Charge fails to give notice of his decision in
writing within a period of twenty days after being requested or if the
Contractor is dissatisfied with the notice of the decision of the Engineer-in-
Charge, the Contractor may within fifteen days after receiving the notice of
decision appeal to the concerned President, Tripura Cricket Association who
shall refer the matter or matters in dispute to the arbitrator & the arbitrator
will be appointed by the President, Tripura Cricket Association.
22.3 It is also a term of contract that the party in invoking
arbitration shall specify the dispute or disputes to be referred to arbitration
under this clause together with the amount or amounts claimed in the respects
of each such dispute."
8. The pleadings of the parties clearly indicate existence of a dispute
on the claims raised by the petitioner and also certain counter claims raised by
the respondents which have been extracted hereinabove. This Court in exercise
of the powers conferred under Section 11(6) of the Act is not required to get
into the merits of the disputes, claims or counter claims raised by the parties. If
an arbitrable dispute exists and the procedure for invoking the arbitration
clause has been followed, the Court exercising powers under Section 11(6), on
being satisfied, is required to appoint an independent arbitrator to adjudicate
the dispute between the parties.
9. A plea has been raised by the respondents that the petitioner had
invoked the arbitration clause 22.2 vide letter dated 06.12.2021 before the
President, TCA (Annexure-5) after the Engineer-in-charge had failed to take
any decision on his request in terms of Clause-22.1 made through letter dated
05.11.2021 within the stipulated period of 20 days. Petitioner has invoked the
jurisdiction of this Court under Section 11(6) of the Act of 1996 after two years
by way of this application filed on 31.01.2024. Therefore, and also for the
reason that petitioner had later on made a request for settlement of his claim
before the General Secretary of the Association on 02.12.2023, the instant
application is barred by time. In the case of M/S Arif Azim Co. Ltd. (supra),
while dealing with the issue relating to the period for filing an application for
appointment of arbitrator under Section 11(6) of the Act from the date of the
request made under the arbitration clause under the agreement to the
respondents for appointment of an arbitrator, it has been held that since no
period of limitation has been provided therein, the period of limitation should
be held as 3 years as per Article 137 of the Limitation Act, 1963 i.e. the
residuary clause. Going by the ratio rendered by the Apex Court in the case of
M/S Arif Azim Co. Ltd. (supra), the instant petition cannot be said to be barred
by delay as it has been filed within 3 years period from the date of invocation
of Clause-22.2 vide letter dated 06.12.2021 addressed to the President, TCA for
appointment of an arbitrator in respect of the claims raised by the petitioner. As
such, this plea is fit to be rejected.
10. Respondents have also taken a plea that against the RA bills raised
by the petitioner, payments have been made from time to time. The work has
not yet been completed. As such, the instant petition is premature. A bare
reference to Clause-22.1 relating to settlement of disputes extracted above
leaves no room for doubt that dispute or difference of any kind whatsoever as
arises between the department and the Contractor in connection with, or arising
out of the contract at stage, whether during the progress of the work or after
their completion and whether before or after the termination, abandonment or
breach of the contract, shall be in the first place referred to and settled by the
Engineer-in-charge who shall within a period of twenty days of such request
being made, give written notice of his decision to the contractor. Clause-22.2
provides that if the Engineer-in-Charge fails to give notice of his decision in
writing within a period of twenty days after being requested or if the contractor
is dissatisfied with the notice of the decision of the Engineer-in-Charge, the
contractor may within 15 days after receiving the notice of decision, appeal to
the concerned President of the TCA who shall refer the matter in dispute to the
arbitrator and the arbitrator will be appointed by the President of the TCA. As
such, the contention raised by the respondents that certain payments have been
made from time to time against the Running Account bills and that the work
has not yet been completed and, therefore, the dispute being raised for
arbitration is premature, is not in accordance with the agreed terms laid down
under Clause-22.1 of the agreement between the parties. Dispute or difference,
if any, arising out of the contract of any kind at a stage even during the
progress of the work or after completion of the work or even before or after the
termination, abandonment or breach of the contract can be raised by the
contractor by following the procedure prescribed under Clause-22.1 followed
by Clause-22.2 of the agreement. As such, the instant plea is also fit to be
rejected. Since the arbitration clause under the agreement between the parties
provides for adjudication of the dispute through arbitration and there exists an
arbitrable dispute between the parties as borne out from the pleadings referred
to hereinabove and that the petitioner has followed the procedure prescribed
under Clause-22.1 followed by Clause-22.2 of the agreement and further that
the instant arbitration petition has been filed within 3 years of the date of
request made by the petitioner for appointment of an arbitrator in terms of
Clause-22.2 vide his letter dated 06.12.2021, this Court is satisfied that all the
ingredients for invocation of jurisdiction of this Court for appointment of an
independent arbitrator for adjudication of the dispute between the parties is
made out.[See SBI General Insurance Co. Ltd. Vs. Krish Spinning, reported
in 2024 SCC OnLine SC 1754].
11. As indicated above, Clause-22.2 relates to appointment of an
arbitrator. Respondents in their counter affidavit have while referring to
Clause-22.2 at page-108 also made a statement that minutes of the Pre-bid
meeting held on 17.10.2016 has been made a part of the contract. It states that
there shall be 3 arbitrators, out of which one each shall be appointed by both
the parties and the two so appointed arbitrators shall appoint a third arbitrator/
principal arbitrator on mutual agreement. Copy of the agreement at Annexure-1
at page-11 refers to the nature of work, the agreement number and other
clauses relating to the estimated cost, agreement amount, the stipulated time for
completion as also the contents of the agreement which is as under:
"THIS AGREEMENT CONTAINS 3(THREE) PART.
Part-A Containing Volume-I-General bid document, Minutes of the
Pre-bid Meeting, Amendment and queries, Technical bid submitted by the
Agency, work programme submitted by the Agency.
Containing 954 Pages.
Part-B Containing Section-V-Technical Specification and Drawings.
Containing 398 Pages.
Part-C Volume-III-(Amended Price bid submitted by Agency),
Amendment and queries, Letter No.RKSCPL/TCA/16-17/002 dated 28th
March, 2017 of Agency offering rebate, acceptance letter, Volume-III (Price-
bid before Amendment).
Containing 645 Pages."
12. Since the entire minutes of the Pre-bid meeting which are
contained in Volume-I of the agreement were not annexed to the arbitration
application, the respondent-Association has produced the Part-A of the
agreement which is Volume-I, i.e. General bid document, Minutes of the Pre-
bid Meeting, Amendment and queries, Technical bid submitted by the Agency,
work programme submitted by the Agency. Minutes of the Pre-bid meeting
held on 17.10.2016 at TCA office complex with the representatives of the
different firms are at pages-93 and 95 thereof. The relevant queries and the
replies/clarification and the amendment thereof to be treated as part of the
agreement are annexed in the subsequent pages of this Part-A. The minutes
dated 21.10.2016 are also extracted hereunder:
"No.F.29/TCA/AGT/607 Dated:-Agartala, 21/10/2016.
Minutes of pre-bid meeting was held on 17/10/2016 at TCA office
Complex in-connection with "Construction of International Cricket
Stadium at Narshingarh, Agartala, Tripura".
At the outset the President, TCA, for and on behalf of the TCA,
welcomed all the representatives of different firms for attending the pre-bid
meeting and expressed gratitude for taking keen interest in implementing the
project "Construction of International Cricket Stadium at Narshingarh,
Agartala" and seeking Co-operation from all concerned.
Queries received/raised by different agencies were discussed in the
meeting and it was informed that the reply to the queries will be uploaded in
the Website of TCA and also be communicated to the agencies/ representative
of agencies who have attended the pre-bid meeting.
One of the prime decision taken in the pre-bid meeting considering
the Diwali holidays that dropping/receiving dates of Tender shall be from
09/11/2016 to 16/11/2016 instead of 24/10/2016 To 02/11/2016 (Between
11:00 Hrs. To 15:00 Hrs. on working days only). Places for receiving Bids is
unchanged i.e. (1) office of the Tripura Cricket Association, Post Office
Chowmuhani, Agartala, Tripura, PIN-799001. (2) Office of the Chief
Resident Commissioner, Tripura Bhawan, Kautilaya Marg, Chanakyapuri,
New Delhi-21. (3) Office of the Addl. Resident Commissioner, Tripura
Bhawan, 1-Pretoria Street, Kolkata-700071. Also it has been decided that
queries on the Bid Document shall be received upto 24/10/2016 and TCA
shall furnish the clarification on 31/10/2016 (if possible) including
amendment if any.
The period of sale of bidding documents has also been extended up-to
14/11/2016 up-to 16.00 hours and place of sale of Bidding document is Office
of the Tripura Cricket Association, Post Office Chowmuhani, Agartala, Pin-
799001, Tripura.
The date of opening of Technical Bid shall be on 21/11/2016 on 15:30
hours at the office of TCA.
Regarding Earnest money deposit it has been clarified that the
Tenderer shall furnish requisite Earnest money deposit along with the Tender
in the form of a Bank demand draft on any scheduled Bank/Nationalised
Bank in favour of Hony. General Secretary, TCA (Earnest money other than
bank demand draft shall not be accepted).
The Minutes of the pre-bid meeting and reply of queries/ clarification
and the amendment will be part of the agreement.
The pre-bid meeting ended with thanks to all.
Sd/-(21/10/2016)
(Sourav Dasgupta)
Hony. General Secretary
Tripura Cricket Association
Agartala, Tripura."
13. The relevant query relating to Clause-22.2 is at page-119 of this
Volume-I relating to the number of arbitrators to be appointed under Clause-
22.2. The clarification of the respondent-TCA thereunder in the last column of
the query No.85 clearly indicates that the arbitration shall be conducted as per
the Arbitration and Conciliation Act, 1996 by appointing 3(three) arbitrators-
one each by both the parties and third arbitrator/principal arbitrator shall be
appointed by the two arbitrators on mutual agreement. The seat of arbitration
shall be in Agartala. Regarding settlement of disputes, other conditions under
Clause 22 page 46 shall prevail. The query and its clarification by TCA at
query No.85 and its clarification by the TCA at page-119 of Part-A of the
agreement is also extracted hereunder:
Sl. Clause Pag Tender Existing Clause/ Queries/Request for Clarification
No. Reference e Clause Description/Provision Amendment of TCA
No. as per Bid-Document
85. Condition 46 Arbitration Sole arbitrator will be The arbitration shall be The
of Contract appointed by TCA. conducted in accordance arbitration
CL-22.2 with the provisions of the shall be
Arbitration and conducted as
Conciliation (Amendment) per the
Act, 2015 (No.3 of 2016) arbitration &
or any statutory conciliation
modifications or re- act, 1996 by
enactment thereof and the appointing
rules made thereunder. 03 (three)
There shall be three arbitrator-
Arbitrators, one each one each by
would be appointed by the both
both the parties and third party and
arbitrator would be third
appointed by other two arbitrator/
whose decision will be principal
final and binding on both arbitrator
the parties. Please confirm. shall be
appointed by
the two
arbitrator on
mutual
agreement.
The seat of
arbitration
shall be in
AGARTAL
A. Regarding
settlement of
disputes
other
conditions
under clause
22 page 46
shall prevail.
14. It, therefore, follows that the mechanism provided under
arbitration clause 22.2 has to be read along with the pre-bid queries and
clarification which form Part-A of the agreement contained in Volume-I. As
such, this Court proposes to appoint two independent arbitrators who shall
thereafter appoint the third arbitrator/principal arbitrator by their mutual
agreement.
15. I, therefore, propose to appoint Hon'ble Mr. Justice S.J.
Mukhopadhaya, former Judge of the Supreme Court of India and Hon'ble Mr.
Justice Permod Kohli, former Chief Justice, Sikkim High Court as the
arbitrators to decide the dispute between the parties.
The proposed arbitrators are requested to submit their consent and
a declaration in terms of Section 12 read with Schedule VI of the Arbitration
and Conciliation Act, 1996.
The Registry shall communicate this order to the proposed
arbitrators.
As per the stipulated procedure between the parties, upon
obtaining their consent and appointment as arbitrator, both the arbitrators are
required to appoint the third arbitrator by their mutual consent.
Let Part-A of the agreement containing Vol-I-General bid
document, Minutes of the Pre-bid meeting, Amendment and queries, Technical
bid submitted by the Agency, work programme submitted by the Agency as
produced by the respondents be kept along with the record.
Let the matter appear on 09.08.2024.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2024.07.23 13:31:49 +05'30'
