S.B.Civil Misc. Application No.16/2008 (Arbitration Application) Chiman Lal Middha vs Rajasthan Housing Board & ors. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. ORDER Chiman Lal Middha vs. Rajasthan Housing Board & ors. S.B. Civil Misc. Application No.16/2008 ( Arbitration Application ) under Section 10 & 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. Date of Order: December 19th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Ms. Rekha Borana for the applicant. BY THE COURT: Application under Sections 10 and 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') was submitted before the court of District & Sessions Judge, Hanumangarh by applicant Chiman Lal Middha, Proprietor of M/s Chiman Lal Rakesh Kumar, 158 Durga Colony, Hanumangarh wherein notices were issued to the non-applicants who submitted reply before the court below. In view of the Notification No.2/SRO/2006 dated 31.5.2006, the court of District Judge lost its jurisdiction and, therefore, the arbitration application has been transferred to this Court by the order of the learned Addl. District & Sessions Judge No.1, Hanumangarh to whom the matter was transferred by the learned S.B.Civil Misc. Application No.16/2008 (Arbitration Application) Chiman Lal Middha vs Rajasthan Housing Board & ors. 2 District Judge. The order dated 27.2.2008 for sending the matter to the High Court was passed by the court after hearing both the parties. Upon receipt of the matter, this petition has been registered in the High Court and the notices were issued to the respondents. Inspite of service of notices, the respondents did not appear, therefore, only counsel for the applicant was heard. As per the facts mentioned in the application, a notice inviting tender No.7/98-99 was issued by the Rajasthan Housing Board for construction of certain quarters. In the said process of award of the contract, the applicant states that he took part in the negotiation wherein he gave rates for the work in question and according to the petitioner, he was entitled to the work order but accepted the rates given by non-applicant no.2 with different rates. According to the applicant, if the rates given by the applicant would have been accepted then the total consideration for the contract would have been Rs.17,16,611/-, whereas that has been reduced in the work order No.2697 dated 11.2.1999 to Rs.16,19,587/-. When the applicant received the work order No.2697 dated 11.2.1999, the applicant immediately protested against it by letter dated 16.2.1999 but the correct work order was not issued containing the correct amount of the work. The applicant after giving more facts about how the work was done and what is the claim of the applicant, submitted that he is entitled to S.B.Civil Misc. Application No.16/2008 (Arbitration Application) Chiman Lal Middha vs Rajasthan Housing Board & ors. 3 issuance of fresh contract containing the correct rates of the contract and alternative, if it is found that the work order time has expired on 16.12.1999, then it may be held that the Rajasthan Housing Board is responsible for non-completion of the work and the respondents may be directed to prepare the final bill and pay Rs. 2,29,163/- to the applicant. In addition to above, the applicant has raised other claims and gave notice to the respondents under Clause 23 of the contract containing the arbitration clause for appointment of the arbitrator and also sent a DD of Rs.250/- to the respondent for that purpose. According to the applicant, even after the notice, the arbitrator has not been appointed by the respondents and, therefore, the applicant is seeking appointment of arbitrator through the court under Sections 10 and 11 of the Act of 1996. The respondents submitted reply before the court below and admitted that work order of Rs. 16,19, 587/- was given to the applicant and this is the correct cost of the work. The applicant was supposed to deposit the performance guarantee of Rs.81,000/- which was admitted by the applicant. Thereafter, the applicant started work from 17.2.1999 which should have been completed before or on 16.12.1999 but the applicant did not complete the work. The applicant's other claims were also denied and it is stated that Clause 23 of the contract could have been invoked only when S.B.Civil Misc. Application No.16/2008 (Arbitration Application) Chiman Lal Middha vs Rajasthan Housing Board & ors. 4 the work is completed by the contractor. The respondents submitted that the arbitrator cannot be appointed in the facts of the case. Since the contract is admitted and there is clause of arbitration and which has been raised by the party to the arbitration agreement and the respondents inspite of notice, have not appointed arbitrator, therefore, it will be appropriate to appoint an arbitrator. Shri Jagjit Singh, Retired Addl. Chief Engineer, Irrigation, 12-A, Sadul Ganj, Near State Garage, Bikaner is appointed as arbitrator. The fees for the arbitrator will be Rs.15,000/- and the arbitrator shall be paid Rs.5000/- as initial fees and the office expenses for the arbitral proceedings shall be payable by the applicant initially and the arbitrator while deciding the dispute may fix the liability and responsibility for payment of the fees which shall be payable as per the order of the arbitrator. The application is, therefore, allowed accordingly. A copy of this order be sent forthwith to the arbitrator. (PAKASH TATIA),J. mlt