ARBAP/23/2022
2022 Latest Caselaw 3683 UK

             IN THE HIGH COURT OF UTTARAKHAND

                                  AT NAINITAL
                 THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI


            ARBITRATION APPLICATION NO. 23 OF 2022

                          18TH NOVEMBER, 2022

BETWEEN:

M/s N.K.G. Infrastructure Ltd.                                 .....Applicant.
And

State of Uttarakhand & another                                 ....Respondents.

Counsel for the Applicant : Mr. Hari Mohan Bhatia, learned counsel.

Counsel for the Respondents : Mr. J.C. Pande, learned Standing Counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

This application has been preferred by the applicant

under Section 11(6) of the Arbitration and Conciliation Act,

1996, to seek appointment of an Arbitral Tribunal to resolve

the disputes between the parties, arising out of their

agreement.

2. Undisputedly, the parties had entered into an

agreement on 02.03.2009 for improvement/ strengthening of

the State Roads in District Haridwar under Contract Package

No.14. The date of start was 23.03.2009, and the date of

completion was 22.09.2010. The case of the applicant is that

the work under the contract was completed on 22.09.2010,

within time and the final bill of the applicant is paid by the

respondents. However, the respondents issued a recovery

certificate on 27.06.2019 of Rs.89.18 Lakhs. The applicant

approached the Commercial Court under Section 9 of the

Arbitration and Conciliation Act to seek interim protection by

preferring Arbitration Case No.299 of 2019, in which, orders

were passed on 30.11.2019.

3. The applicant, thereafter, invoked the arbitration

agreement vide notice dated 05.12.2019. However, the

respondents have not co-operated in constitution of an

Arbitral Tribunal in terms of Clause 24.7 of the agreement.

4. The respondents have claimed that the applicant

has resorted to corrupt practices and caused loss to the

Government Exchequer. It was also stated that the

application dated 03.04.2021, moved by the applicant, was

barred by limitation. Consequently, the applicant has

preferred the present application.

5. The respondents have filed their counter-affidavit.

6. A perusal of the counter-affidavit shows that there

is no dispute to the fact that the parties entered into an

agreement which contains arbitration agreement. The

respondents claim overpayment under the contract of

Rs.178.36 lakhs, and the respondents claim that 50% of the

said loss is to be recovered from the applicant, while the

remaining 50% would be recovered from the departmental

officers. Issues raised by the respondents are disputes on

merits.

7. Since, there is no dispute about the existence of

the arbitration agreement under the contract, and to the fact

that the applicant invoked the arbitration agreement, I am

inclined to allow the present application.

8. Accordingly, the Arbitration Application is allowed. I

appoint Smt. Meena Tiwari, Retd. District Judge (Mobile

No.9411108006), as the sole arbitrator to adjudicate the

claims and counter-claims of the parties, arising out of the

aforesaid agreement.

(VIPIN SANGHI, C.J.)

Dated: 18th November, 2022 NISHANT