Rajasthan High Court - JodhpurM/S Yaduvanshy Cons.Company vs State & Ors on 7 July, 2009Author:Prakash TatiaBench:Prakash Tatia1

       S.B. Arbitration Application No.27/2008
          M/s. Yaduvanshy Const. Company
                          vs
              State of Rajasthan & Ors.

DATE OF ORDER : 7.7.2009


             HON'BLE MR. PRAKASH TATIA.


Mr.RS Choudhary, for the applicant.
Ms.Aruna Negi, for the respondent.

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     Heard learned counsel for the parties.

     The petitioner-contractor in response to the notice

inviting tender issued by the respondent submitted his

tender and ultimately his offer was accepted and petitioner

executed the agreement with the respondent and started

working from 29.10.2005 and as per the petitioner he

started the work and it is also alleged that during carrying

out the work as per Annex.1, the petitioner firm faced

objections of the residents of ward no.15 and therefore, he

could not complete the work.      It is alleged that Asstt.

Engineer and Executive Engineer of the Municipal Board,

Bhadra directed the petitioner-firm to stop work and,

therefore, the work remained closed for 2 months.      After

some time, instructions were issued by the Executive

officer, Municipal Board, Bhadra to the petitioner-firm for

starting the work and petitioner-firm started the work. On
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23.1.2006 against there were some objections raised by

some tenants and work was not completed. The petitioner

submitted    some    representations    and    ultimately,   the

respondent cancelled the contract of the petitioner on 17th

Marcy, 2006 and issued fresh NIT for completion of the rest

of the work at the risk and cost of the petitioner-firm.     The

petitioner-firm filed the suit for injunction for restraining the

other party to do the work, however, the petitioner has

submitted this petition underSection 11of the Arbitration

and Conciliation Act, 1996 for appointing the arbitrator to

settle the dispute as the petitioner has paid a sum of

Rs.56762/-    and he also deposited the settlement fees as

required by clause 23 of the agreement.          Inspite of the

petitioner's request, the arbitrator was not appointed,

therefore, he has submitted this petition underSection 11of the Act of 1996 before this Court.

       The respondent submitted reply and raised objection

that clause 23 provides for referring the dispute to the

standing committee and according to learned counsel for

the respondent there is no provision for referring the matter

to the arbitrator and, therefore, the arbitrator cannot be

appointed.

       The objection raised by the respondent has already

been     answered by the Division Bench of this Court
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            delivered in the case of Chetan Construction Co. Vs. State &

            Ors reported in 2005(1) WLC (Raj.) 484 wherein the

            authority failed to refer the matter to               the standing

            committee under the same clause 23 then this Court held

            that if the party fails to act in accordance with procedure

            provided in clause 23 of agreement then the Chief Justice or

            the Judge designated by it is required to appoint arbitrator

            after taken into consideration the provisions ofSection 11of the Act of 1996.

                  Since there is live dispute and that has not been

            adjudicated yet and the petitioner before approaching this

            Court requested the respondents for appointing arbitrator

            and   the   respondent   failed       to   appoint   the   arbitrator,

            therefore, this petition is allowed and Sh. Sohan Lal

            Beniwal, Retd. Executive Engineer, Irrigation Department

            resident of Near Tiddi Area, Patel Nagar, Bikaner is

            appointed as arbitrator, who may fix his fees and also fix

            the expenditure which is necessary for conducting arbitral

            proceedings.

                                                        (PRAKASH TATIA),J.cpgoyal/-