Arbitration Case No. 16 of 2007 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Arbitration Case No. 16 of 2007 Date of Decision: 21.01.2010 M/s Lioyd Insulations (India) Limited ..Petitioner Versus Haryana Power Generation Corpn. Limited. & others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present :- Mr. Arun Dogra, Advocate, for the petitioner. None for the respondents. *** MUKUL MUDGAL, C.J. (Oral) 1. This petition has been filed by the petitioner under Section 11(6) of the Arbitration & Conciliation Act, 1996 (for short ' the Act), for appointment of a sole Arbitrator to adjudicate upon the disputes between the parties. 2. Clause 47 of the agreement contains the Arbitration Clause which reads as under:- “ 47. If any question, dispute, difference or objection whatsoever arises in any way connected with or arising out of this instrument or meaning or operation of any part thereof or the rights, duties or liabilities of either party, including the termination of the contract by either party and correctness thereof, at any stage whatsoever, it shall be referred to the arbitration of the Chairman/Chief Arbitration Case No. 16 of 2007 [2] Engineer of HSEB or his nominee not below the rank of a Superintending Engineer subject to the following conditions:- i) That in the first instance, before referring the matter to arbitration, it shall be referred by the contractor for being settled by the Engineer-in-Charge of the work at the time of such reference in writing. The Engineer Incharge shall convey his decision or that of the competent authority in writing to the contractor within a period of 90 days from such a request in writing by the contractor. The decision given by the Engineer Incharge or the competent authority shall be final and binding upon the contractor except where he moves the Engineer Incharge in writing for reference of such a claim or dispute to arbitration within a period of 60 days of his receipt of decision of the Engineer Incharge or the competent authority in writing. In case the contractor fails to make such a written request within the stipulated period, the decision so conveyed to him by the Enginer Incharge will be final and will not be a subject matter of arbitration at all. In case the Engineer Incharge fails to convey his decision or that of the competent authority in writing within a period of 90 days as referred to above, the contractor may make a request to the Chairman within 60 days of the expiry of thesaid 90 days to refer the matter to arbitration and the same shall be referred to arbitration in the manner provided hereinafter. The work under the contract, shall not be stopped and shall continue during the arbitration proceedings. ii) xx xx xx iii) xx xx xx iv) xx xx xx v) xx xx xx vi) xx xx xx vii) In case the party invoking the arbitration is the contractor, the reference for arbitration shall be maintainable only after the contractor furnishes to the satisfaction of Engineer-in-Charge a cash security deposit @ 3% of the total amount claimed by him. The sum so deposited by the contractor shall, on the termination of the arbitration proceedings be adjusted against the cost if any and any amount awarded against the contractor. The remaining amount shall be refunded to the contractor within one month from the date of the award.” 3. Pursuant to the above arbitration clause, the arbitration was invoked after following the procedure stipulated in the arbitration clause vide letter dated 22.11.2006, but no Arbitrator has been appointed. Arbitration Case No. 16 of 2007 [3] 4. On 16.10.2007, respondents were granted opportunity to file reply till 28.1.2008 but on 28.1.2008 reply was not filed and again the time was extended till 29.4.2008 for the same purpose. Thereafter, on 29.4.2008, time was again extended till 29.8.2008 for filing the reply by the respondents by the Court. Thereafter, neither reply has been filed nor respondents have put in appearance. Today also, no one has put in appearance on behalf of the respondents. Accordingly, the respondents are proceeded against exparte. 5. Keeping in view the totality of the facts narrated above, this petition is allowed and it is directed that respondents shall appoint the Arbitrator subject to full compliance with clause No. 47 not later than four weeks from the date of receipt of a copy of this order. The petitioner company is directed to communicate this order to the respondents. The statement of claim be supplied to the respondents within four weeks and response to the statement of claim shall be supplied to the counsel for the petitioner within a period of four weeks thereafter. The parties shall appear before the Arbitrator on 19.4.2010 at 4.00 P.M. or on an agreed date convenient to the parties but not later than a fortnight from the date of exchange of pleadings as directed aforesaid. The Arbitrator shall make an endaveour to dispose of the reference not later than six months from the date of first appearance of the parties. The Arbitrator shall fix his own fee. Petition stands disposed of. (MUKUL MUDGAL) CHIEF JUSTICE 21.01.2010 'ravinder'