1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDCITION ARBITRATION PETITION NO.9 OF 2008 SAMCON Infrastructure Corporation. .. Applicant Vs. Shree Satav Construction Pvt. Ltd. .. Respondent -- Shri V.P. Sawant for the Applicant. Shri S.B. Deshmukh for the Respondent. -- CORAM : SWATANTER KUMAR, C.J. DATE : 14TH NOVEMBER, 2008 P.C. Heard learned Counsel appearing for the parties. By consent of the parties, the petition is taken up for final disposal. 2. The Respondent herein invited tender for construction of RCC tunnel on Right Bank Canal of Bargi Diversion Project from RD 35.075 Km to RD 36.275 Km including Up Stream and Down Stream transition at Entrance and Exit of Right Bank Canal including Earthworks, Lining Works and Junction with Right Bank Canal at RD 35.00 Km to RD 35.075 Km and RD 36.275 Km to 2 36.500 Km respectively. The tender was accepted and for the work in question, an agreement was entered into between the parties on 20th January, 2003, and thereafter the work commenced. However, certain disputes arose between the parties. According to the Respondent in the petition, the work was abandoned while, according to the Petitioner, there was a wrongful termination of the said Agreement. Clause 14 of the said Agreement reads as under: - “14. ARBITRATION In case of any dispute between the parties about this agreement the disputes shall be referred to sole arbitrator mutually agreeable in terms of Indian Arbitration and Conciliation Act 1996 The arbitrator's decision shall be final and binding on both the parties.” 3. There is no denial to the execution of the agreement which contains arbitration clause. In other words, there is admittedly a binding arbitration agreement between the parties. Objection raised on behalf of the Respondent in the petition is that in terms of clause 6 of the Agreement, the Respondent is entitled to get remaining work executed at the risk and cost of the Applicant, and till that time the work is completed the Applicant 3 has no right to claim reference to the arbitration in terms of clause 14 of the Agreement. This argument is without any basis and has no merit. Clause 6 reads as under:- “6. In case work is abandoned by SIC during the currency of the contract, the balance leftover work shall be got executed by SSCPL at the risk and cost of SIC.” 4. No doubt, the above clause gives right to the present Respondent to get the work/many work executed through an independent agency and at the risk and cost of the Applicant. This clause noway can be read to be an impediment in law in reference to the arbitration. The Respondent is at liberty to get the work executed and if necessary can raise claim of the said amount against the Petitioner before the arbitral tribunal, if it so desire. These are two independent clauses and will operate in their own field. The clause of work is at the risk and cost of the Applicant and completion of the remaining work is not a condition precedent to invocation of Clause 14 i.e. Arbitration Clause. The Respondent is at liberty to raise such claim as it deems fit and proper against the Petitioner even during the course of arbitration 4 proceedings. 5. For the reasons aforestated, I find no merit in the objection raised on behalf of the Respondent and permit the Petitioner to invoke Clause 14 of the Arbitration Clause. The parties are mutually not agreeable for an appointment of the Arbitrator. As such the Court will appoint arbitrator. Resultantly, Shri B.V. Chavan, Former Judge of this Court, is appointed as the Sole Arbitrator, who may enter upon the proceedings in accordance with law. Petition is disposed. No order as to costs. CHIEF JUSTICE