ARBAP/55/2022
2022 Latest Caselaw 3580 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

       THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

           ARBITRATION APPLICATION NO. 55 OF 2022

                       11th NOVEMBER, 2022

Between:

M/s Telecommunication Consultants
India Limited                                ...... Applicant/Petitioner

and

Border Road Organization,
Through its Officer Commanding               ......         Respondent



Counsel for the applicant      :        Mr. I.P. Kohli, learned counsel


Counsel for the respondent     :        None appears



The Court made the following:


JUDGMENT:

Despite grant of opportunity, no reply has

been filed. None appears for the respondent.

Accordingly, I proceed to dispose of the present

application preferred by the applicant under Section

11(6) of the Arbitration and Conciliation Act.

2) The case of the applicant is that the applicant

entered into an Agreement with the respondent with the

issuance of a Work Order No. 01 on 24.07.2009. The

brief specification of the work given in the Work Order

was "Widening / Improvement of Dharasu-Gangotri Road

(NH-108) from Km 0.000 to Km. 13.000 (Net Length

13.000 Kms.)". The date of handing over of the site was

27.07.2009, and the date of completion was 26.07.2011.

The case of the applicant is that disputes arose between

the parties in relation to the said work, and the applicant

invoked the Arbitration Agreement on 30.12.2021.

3) The applicant claimed in the notice that the

completion of the work was delayed and various

extension of time letters were issued. The work was

successfully completed on 31.10.2017, and the

maintenance period of 12 months got over on

31.10.2018. The applicant claimed that the respondent

had not cleared the applicant's dues, and consequently,

invoked the arbitration agreement contained in Clause

70 of the General Conditions of Contract, on 31.12.2021.

The said Clause reads as follows:

"70. Arbitration. -All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents.

Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the Works or termination or determination of the Contract under Condition Nos. 55, 56 and 57 hereof.

Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any other Contractor or Contractors or Agency or Agencies.

Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the Government's right of recovery from the contractor as provided in Condition 67 hereof.

If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him any appoint a new Arbitrator to act in his place.

The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence.

The Arbitrator may proceed with the arbitration, exparte, if either party, inspite of a notice from the Arbitrator fails to take part in the proceedings.

The Arbitrator may, from time to time with the consent of the parties, enlarge, the time upto but not exceeding one year from the date of his entering on the reference, for making and publishing the award.

The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be, on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute.

The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion.

The Award of the Arbitrator shall be final and binding on both parties to the Contract."

4) According to the applicant, the final bill was

not prepared in accordance with the Agreement, and the

applicant received the payment under protest. Counsel

for the applicant, therefore, submits that the invocation

of the Arbitral Agreement was within the period of

limitation. The respondents have not opposed the

application on any ground, much less on the ground of

limitation.

5) It is settled law that issues of limitation can be

left for adjudication by the Arbitral Tribunal.

6) Accordingly, I allow the application, and

appoint Mr. Justice G.S. Sistani, Retd. Judge, Delhi High

Court (Mobile No. 9871300034), to act as the sole

Arbitrator to adjudicate the claims and counter-claims of

the parties arising out of the aforesaid Agreement

between the parties. The Arbitral Tribunal shall also

determine the issue of limitation, if raised.

7) The Arbitration Application stands disposed of

in the aforesaid terms.

________________ VIPIN SANGHI, C.J.

Dt: 11th NOVEMBER, 2022 Negi