,qE @ HIGH COURT OF CHHATTISGARH BILASPUR M.C.C.No.164 of 2004 M/s. Arfsons Engineering Limi1'ed Vs. The Secre‘mry 'I’o The Governmenf of Chha‘H’isgarh and another O R D E R (in Chamber) Posf for 01.12 .2005 Sd/- 6 ‘ SuniIKumar Sinha i Judge f @ HIGH COURT OF CHHATTISGARH, BILA$PUR $ir_lgle Bench : Sunil Kumar Sinha, J (in Chamb_¢_r) M.C.C.NO.164 of 2004‘ M/s. Arfsons Engineering Limi'red Vs. The Secretary 1’0 fhe Governmenf of Chha‘rfisgarh and ano‘rher Appearance: , . ’ 5hri P.K. Jain, counsel for fhe applicant Shri V.V.5. Mur'rhy, Depu‘iy Advocafe General for ihe respondems. ORDER (01.12.2005) (1) This applicafion u/s 11(6) of 1'he Arbifrai'ian and Conciliafion Act 1996 (hereinafi'er referred 'i’o as fhe Ac1' 1996) has been filed by 1he applicarrr for appointment of an Arbifro'ror f0 decide fhe dispufe befween 'rhe applicanf and “the respondents. The facfs are fha‘r a confracf agreemen'l' dated 12.2.2002 was enfered info befween fhe parfies for The work of consfrucfion of rural roads, (Group no.24 Package No.C.G—09-03, Disfric'r Kawardha) for an esfimafed cosf of Rs.478 iakhs under Pradhan Manfri 9am 5adak Yojna 2001 -2002. The aforesaid confracf was fermina‘red by the respondents vide their ietter dated 24.11.2003. The applicant, therefore, vide his letter dated 16.1.2004 claimed a sum of Rs.2,69,90,262=70 as compensation of damages and loss on account of illegal termination 3f contract and when ‘ the same was not attended to, the applicant approached the Superintending Engineer under the terms of the agreement for settlement of disputes arose between the parties. When the @ Superin'fending Engineer did no? proceed fo decide 'rhe dispu're, The applican’r appealed f0 fhe Chief Engineer as per- 1'he ferms'of fhe agreemenf and when fhe maffer was nof faken up for decision, fhis applicafion u/s 11(6) of "the Acf has been filed on 16.9.2004. (2) A reply 1'0 'rhis applica'rion has been filed by ‘rhe Side. Though 'H'Ie Sfafe has dispufed fhe merifs of ‘lhe claim by jusl'ifying ihe fermina'rion of 1'he confracf bu'r vide par-a 7 of ‘rhe reply, if has been submiffed fhaf 1here is an arbifmfion agreemenl' vide Clause 29 and if can be invoked under cer‘i'ain condi'rions men’fioned in 'I'his paragraph. Aparf from fhe above grounds raised in fhe pefi'rion and fhe reply, learned counsel for fhe Sfafe submitted fhaf since The Arbifra‘fion Tribunal has started func‘iioning from 02.9.2005, 'rherefore, fhe applicanf should move fhe Tribunal for se'r‘l'lemen'r of the dispute and this petition would not be maintainable. (3) This question regarding maintainability of the petition was also raised earlier, before the Chief Justice in M.C.C.No.69/2003 and Hon'blethe Chief Justice vide his order dated 16.9.2005 passed in M.C.C.No.69/2003, alongwith 5 other Miscellaneous Applications filed u/s 11(6) of the Act, decided and held that since the Arbitration Tribunal constituted under the 'c'hhaffisgarh Madhyasfhaln Adhikaran Adhiniyam 1983 has started functioning with effect from 02.9.2005, but by the said date, the applications (those applications) were filed before the Court and a request was made to the Chief Justice to appoint an Arbitrator under section 11 of the Aforesaid Act, the proceedings pending before the Chief Justice prior to commencement of functioning of the Arbitration Tribunal stood saved under sub- section (2) of 5ec.20 of the\Chhattisgarh Madhyastham Adhikaran Adhiniyam 1983. If was also held ha? fhe cons*i+u1ion and functioning of Arbi‘rra‘rion Tribuna! under The Chha'r‘risgarh MadhYasfhnm Adhikamn Adhiniynm w.e.f. 02.9.2005 would not be a bar for 'rhe Chief Justice ‘ro pass an order appointing an Arbifrafor- 1’0 1he proceedings pending before him. (4) In fhis View of fhe mo'h’er, this objection cannot be sustained and this application for appointment of an Arbitrator filed u/s 11(6) of the Act on 169.2004 would be mointainable. (5) In the facts and circumstances of this case, when the presence of arbitration clause vide Clause 29 of the impugned agreement dated 21.2.2002 is admitted, I am of the opinion that on Arbitrator can be » appointed to settle the dispute. (6) Consequently, I hereby appoint Hon'ble Mr. Justice A.V.5. Murthy (Retired Chief Justice of High Court of Chhattisgarh) presently residing at Chennai (Tamilnadu) as the Sole Arbitrator in exercise of the powers conferred u/s 11(6) of the Arbitration and Conciliation Act 1996. Jhis appointment shall be subject to his consent. l Sdl- i, l . l Sunil Kumar Sinharr l Judge l l 01.12.2005W Rao