F.A.O No.4936 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.4936 of 2005 Date of Decision: 18.09.2009 State of Haryana through Engineer-in-Chief, Haryana, PWD, B&R, Sector 19-A, Chandigarh. ....Appellants Versus Ajit Kumar, Govt. Contractor ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. K.C. Gupta, A.A.G., Haryana for the appellant-State. Mr. Bharat Bhushan Sharma, Advocate for the respondent. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is an appeal against the Order dated 20.11.2004 passed by Additional District Judge, Karnal, vide which the application under Section 11(6) of the Arbitration and Conciliation Act, 1996, was dismissed. The solitary argument raised by learned counsel for the appellant-State is that the respondent could not invoke the proceedings under Section 11(6) of the Arbitration and Conciliation Act, 1996 for invoking arbitration clauses without availing the remedy of approaching the Executive Engineer-in-charge of the work at the first instance. It was F.A.O No.4936 of 2005 2 argued that in view of Clause 25-A of the Agreement, the respondent should have first filed claim petition before the Executive Engineer. Thus, the award is without jurisdiction. Learned counsel for the parties were heard. Arbitration Clause 25-A(1) reads as follows :- “Arbitration Clause 25-A(1): if any dispute or difference or any kind whatsoever shall arise between the Governor of Haryana/his authorized agents and the contractor in connection with or arising out of the contract or the execution of work that is (i) whether before its commencement or during the work or after its completion (ii) and whether before or after the termination abandonment or breach of the contract, it shall in the first instance be referred to for being settled by the Executive Engineer-in-Charge of work at the time and he shall within a period of 60 days after being requesting in writing by the contractor to do so convey his decision to the contractor and subject to arbitration as here-in-after provided in such decision in respect of every matter so referred, shall be final and binding upon the contractor in case the work is already in progress the contractor will proceed the execution of the work on the receipt of decision by the Engineer-in- Charge as aforesaid with all due diligence whether he or of Governor of Haryana.” Learned counsel for the respondent pointed out to the findings recorded by the Additional District Judge, Karnal, wherein, it was held :- “ It is proved on record that the applicant had first approached the respondents for settlements of the dispute by appointing the arbitrator but the respondents failed to appoint the arbitrator. Hence, the only solution left with the applicant is to approach civil court for the appointment of arbitration and there is no illegibility in the same.” Learned counsel for the appellants was not able to dispute the F.A.O No.4936 of 2005 3 factual position. It is, therefore evident that the respondent had duly approached the Executive Engineer at the first instance in accordance with Clause under Section 25-A of the agreement. Thus, the very basis of the argument goes. No other argument was raised. In view of the same, there is no merit in the submission made by learned counsel for the appellants and the appeal is, accordingly, dismissed. (NIRMALJIT KAUR) 18.09.2009 JUDGE gurpreet