Uttarakhand High Court
ARBAP/29/2020 on 26 August, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
ARBITRATION APPLICATION NO. 29 OF 2020
26TH AUGUST, 2022
BETWEEN:
M/s Shiva Electrical & Airport Global Technical Solutions
.....Applicant.
And
BRIDCUL ....Respondent.
Counsel for the Applicant : Mr. Aditya Pratap Singh, learned
counsel.
Counsel for the Respondent : Mr. Ajay Veer Pundir, learned
counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The applicant has preferred the present Application,
under Section 11(6) of the Arbitration and Conciliation Act,
1996, to seek appointment of a sole Arbitrator under clause
25 of the contract agreement entered into between the
parties on 22.11.2013, to adjudicate the disputes, which have
arisen between the parties in terms of the agreement.
2. The applicant is a consortion of M/s Airport Global
Technical Solutions. The present application has been
preferred by the consortion, and is being pursued by the
Project Coordinator of M/s Airport Global Technical Solutions
Pvt. Ltd, which is the leading member of the joint venture in
terms of the joint venture agreement dated 27.11.2013,
which has been placed on record as Annexure No.1.
3. The case of the applicant is that the applicant
completed the works under the project and the respondent
has also acknowledged that position vide work experience
certificate dated 20.07.2019. The applicant further claims
that its dues are payable and outstanding which the
respondent was not paid. They have been enumerated in the
communication dated 03.10.2019, addressed to the Project
Manager, BRIDCUL, which is now the respondent.
4. The further case of the applicant is that the
contract between the parties contains an arbitration
agreement in clause 25. The relevant part whereof reads as
follows:-
"Clause 25
Settlement of Disputes & Arbitration
Except where otherwise provided in the Contract all
questions and disputes relating to the meaning of
the specifications, design, drawings and instructions
herein before mentioned and as to the quality of
workmanship or materials used on the work or as
to any other question, claim, right, matter or thing
whatsoever in any way arising out of or relating to
the Contract designs, drawings, specifications,
estimates, instructions, orders or these conditions
or otherwise concerning the works or the execution
or failure to execute the same whether arising
during the progress of the work or after the
cancellation, termination, completion or
abandonment thereof shall be dealt with as
mentioned hereinafter:-
1) If the Contractor considers any work demanded
of him to be outside the requirements of the
Contract, or disputes any drawings, record or
decision given in writing by the Engineer on any
matter in connection with or arising out of the
Contract or carrying out of the work, to be
unacceptable, he shall promptly within 15 days
request the Project Manager, USIDCL in writing for
written instruction or decision. Thereupon, the
Project Manager, USIDCL shall give his written
instructions or decision within a period of one
month from the receipt of the Contractor's letter.
If the Project Manager, USIDCL fails to give his
instructions or decision in writing within the
aforesaid period or if the Contractor is dissatisfied
with the instructions or decision of the Project
Manager, USIDCL, the Contractor may, within 15
days of the receipt of the Project Manger, USIDCL
decision, appeal to the Appellate Authority specified
in Schedule 'F' who shall afford an opportunity to
the Contractor to be heard, if the latter so desires,
and to offer evidence in support of his appeal. The
Appellate Authority shall give his decision within 30
days of receipt of Contractor's appeal. If the
Contractor is dissatisfied with this decision the
Contractor shall within a period of 30 days from
receipt of the decision, give notice to the
Appointing Authority specified in Schedule 'F' for
appointment of arbitrator failing which the said
decision shall be final binding and conclusive and
not referable to adjudication by the arbitrator".
5. The further case of the applicant is that the
applicant invoked clause 25 of the contract agreement. The
applicant also approached the appellate authority, since the
applicant was not satisfied with the stand taken by the
respondent in the meeting held on 21.09.2020, minutes
whereof has been placed on record as Annexure No.12. To
the appeal preferred by the applicant, there was no response
on behalf of the respondent and, consequently, the applicant
invoked the arbitration agreement on 27.01.2020. Once
again, there has been no response and, consequently, this
application has been preferred.
6. The respondent does not dispute that the parties
had entered into the contract agreement dated 22.11.2013,
which contains an arbitration agreement in clause 25. The
respondent also does not dispute the fact that the applicant
has invoked the procedure prescribed in clause 25, and that,
eventually, the arbitration agreement was invoked by the
applicant on 27.01.2020, since no decision was taken by the
appellate authority on the appeal dated 27.01.2020. The only
defence taken by the respondent is that there is no
outstanding dispute between the parties, as the applicant has
been made payment of the entire dues under the contract.
7. As to whether, or not, the claims made by the
applicant are sustainable, is a matter which does not fall for
consideration in these proceedings before this Court, as they
relate to the merits of the claims of the applicant.
8. In view of the aforesaid, the Application is allowed.
I appoint Mr. Justice Pradeep Nandrajog, Retired Chief
Justice, Bombay High Court (Mobile No.9818000130), to act
as the sole Arbitrator to adjudicate all claims/ counter-claims
and dispute between the parties, under the aforesaid
Agreement.
(VIPIN SANGHI, C.J.)
Dated: 26th August, 2022
NISHANT
