\ IN THE HIGH COURT OF JUDICATURE AT BILASPUR gC .G l ABITRAfrION APPLICATION No. y /07 APPLICATION TINDER SECTION 1 1 [6l OF THE ARBRITATION ANDax CONCILIATION ACT 1996 FOR THE APPOINTMENT OF ARBITRATOR x“ APPLICANT Orient Enterprises, @ j Engineer, 85 Contractor W it M. “‘33 w .. ?r6$€5§‘“ E/32, Madhu Sudan Market, \ k ”9 Raulkela, 1. / t MW RESPONDENT : Bharat Alluminium Co. Ltd. w ‘ Through General manager (MM) ‘ Alumina Plant, Welfare Building, Balco Nagar, Korba.(C.G.) p... HEGH CQUR’E‘ 9F CEIHANISG$RH AT BELASPUR .f, 9 Am A. Ne. 39 OF 2007 W 3%PPLECAKT Orient Entaprises Versas RE$PO§$DEE€T Bharat Aluminum COV Ltd. SIEKELE BEN'CH:— Lion. Shri NK‘ fKgaxwa}, J ?§E$ENT :~ Smt. Renu Kochar, Adv. for the applicant. Shri Bhaskar Payasi, Adv. for 1:116 respandmlt. g3 R A L QR I: E R (8-2-2010) WA . Th6 appiicarit has pmferred ibis applicaiion under Sactien 1K6} of the Arbitration and Conciliation Act, i996 (briefly, ‘the Act’} for appointment of arbitrator. 1% per applicant, the non—appEicant issued selvice order on {D\ 5—6-2006 for “Repiacement of Cones for Bail Miii No. 1" izalued at RS. 4 17,000/ - in favour of the appiioant. As per the tei‘ino of the agreement, the appiicant delivered CO material to the non—appiicant within stipulated time and submitteti tirSt/final bii €01“ the aforesaid work for an amount of RS 4,17,900/—, but the non—applicant released only Rs. 2,63,907j— on 23—9~2006. The applicant then requeeted the non—applicant to provide details of deduction made in the said payment, but the nonapplieant has paid no heed to the request made by the applicant. 4-. The general eonditione of contract between the applicant and noneappiieant contains arbitration Clause as per clause 92 of the General Terms and Conditions of the Contract iiihich is a part of the work order. The applicant made a request to the non-applicant Vide letter reference No. OEfRKL/OEv—(W/lt) dated 1—12—2006 for appointment of ar’oitrator for resolving the dispute pertaining to the aibreeaitl unpaid clueo lying with the applicant. The said request letter was received by the non-applicant, even then, arbitrator has not been appointed. ,é‘ ‘ ' $ 2 01 €XiSt€nc€ of arbitraticn Clause as W€11 as c‘iispute betwe€n €116 partias emd prayed for dismiSsal of the appEication. 0’s . Stat. Renu Kochar, learned connsei for the applicant would cagiald that as pm" terms and conditions melltiormd in Ammxura A-i, th€ General 331d Special Conditions of Coxm‘act prevailmg at Balco shall be applicable fer the work and the General Conditioas of Contract prevamag in Balco contams arbiEration dause and, therefore, it caimot be‘ said, that the metapi contract does not centain arbitration c1ause. She would further contend that the applicant has got yeceived the aforesaic‘uamomlt of fmal bill in full alld fmal satisfaction of the claim and the reply of the 11011- applicant that the applicant has received thefmal bill in full and fmal satisfaction is not correct and, therefore, it camlot be Said that ‘ihere is no cliepute between the parties to he referred to arbitrator. J‘ . Per contra, Shri Bhaskar Payasi, learned counsel appearing for me hoe-applicaht woula submit that although the General Conclitions of Contract prevailing in Balco is applicable m contracts with the Balco which also contains arhitration'elause but arbitration clause as annexed by the applicant in their applicant is of diiferent contract and in respect of ciiii‘erent party named Karmjeet Singh and Company and theretore, the said arbitration clause cannot he referred in the instant matter. He would further contend that since the applicant has received the amount oi‘ bill in their full and final satisfaction, therefore there is no dispute between the parties so as to refer the matter to arbitrator. . l have heard learned counsel for the parties and perused the record .in the instant case, following questions fall for determination of the case:— Whether there is an arbitration clause ? ii. whether there is a dispute between the parties so as to refer the matter to arbitrator '2’ . the non-applicant by fiiing his reply has denied the g9 \ ‘ 3 10. Indisputably, as per the service ord€r Annexura P—l,’ G€nera1 Conditions of Contract pmvajling at Balco shal} b6 applicable for the work‘ It is aiso not in dispute that Ganeral Conditions of Contract pifevajling at Balco axid alsc applicable in the instact case contains arbitration clause as Clause No. 9.2.3. A bare reading of the arbitration clause along with Clause 2 of Special Conditions of Contract mentioned in service order Annexure A—l, would reveal that there is a special reference indicating a mutual intention to incorporate the arbitration clause from another document into the contract. As per the said clause, the General and Special Conditions of Contract prevailing at Balco shall be applicable for the work. The said general conditions of contract contains arbitration clause The said general conditions of contract shall be deemed to be incorporated by reference in the service order Annexure P—i including arbitration clause Therefore, the objection taken by the non—applicant that the agreement does not contain arbitration clause is sans merit. l 1. So far as other objection is concerned, no material has been produced by either party to suggest Whether or not the amount of final bill has been received by the applicant in full and final satisfaction of his claim / bill and therefore, the ground raised is also merit less. Further Whether or not the amount of final bill has been receiVed by the applicant in full and final satisfaction of his claim is itself a dispute which is to be decided by the arbitrator in the facts and circumstances of the case. Therefore, l see no merit in the objections of the non—applicant regarding non- inaintainability of the petition. l2. Considering that the parties to the proceedings had entered into a contract which contains arbitration clause and further considering that the non—applicant hasl‘ailed to act on the request of the applicant for appointment of arbitrator and also considering that the dispute had arisen out of the contract agreement, this Court is of the opinion that a case for appointment of arbitration is made out. @ 13. Learned counse1 for the parties submit that th€y have no objection if Hon’me Shri Justice V.K. Shrivastava, former Judge of High Court of Chhattisgayh is appointed as Arbitrator in the present case. 14. Therefore, I hereby, With the consent of the parties, appoint Hori’ble Shri Justice V.K.Shrivastava, former Judge of High Court of Chhattisgarh at Bilaspur, sole arbitrator, for which as per Shri Payasi, Hon’bie Shri Justice VK. Shrivastava has aiready accorded his consent. 15. The Hon’bie Arbitrator may settle his terms and conditions and remuneration. 16. Registry to intimates Hon’ble Shri Justice V.K. Shrivastava, former Judge of High Court of C.G. Bilaspur, about his appointment as Arbitrator and to send all the papers aiong with address of the parties. 17. Parties are aiso directed to approach Hon’bie Shri Justice V.K.Shirvastava, who is presently residing at Mridu Vina, beside Uday Children Hospital, Vidhik Sewa Marg (01d Warehouse Road}, Biiaspur and to submit papers and to take part in arbitration proceedings. 18. Arbitration applicant is accordingly disposed of. Sd/- N.K.Agarwal Judge