Arbitration Case No. 145 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.M. No. 3844-CII of 2010 in Arbitration Case No. 145 of 2008 (O&M)] Date of Decision: 9.3.2010 M/s Shekhar Constructions Company ..Petitioner Versus State of Haryana and 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. Vibhav Jain, Advocate, for the applicant-petitioner. Mr. Anil Rathee, Addl. A.G. Haryana, for the respondents. *** MUKUL MUDGAL, C.J. (Oral) C.M. No . 3844-CII of 2010 Notice. Mr. Anil Rathee, Addl. Advocate General, Haryana accepts notice on behalf of the non-applicant-respondents and states that he has no objection if the application for restoration is allowed and main case is restored to its original number. In view of the fair concession extended by Mr. Rathee, the application for restoration is allowed and main petition is restored to its Arbitration Case No. 145 of 2008 [2] original number. At the request of learned counsel for the parties, the main petition is taken on board for final disposal. Arbitration Case No. 145 of 2008 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 25-A of the agreement contains the Arbitration Clause which reads as under:- “ Clause 25-A(1) If any dispute or difference of 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 of the execution of the work that is (i) whether before its commencement or during the progress of the work or after its completion (ii) and whether before or after the termination abandonment of branch of the contract, it shall in the first instance be referred to for being settled by the Executive Engineer-in-charge of the work at the time and he shall within a period of sixty days after being requested in writing by the contractor to do so, convey his decision to the contractor and subject to arbitration as hereinafter provided 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 with the execution of the work on receipt of the decision by the Executive Engineer-in-charge as aforesaid with all due diligence whether he or the Governor of Arbitration Case No. 145 of 2008 [3] Haryana/his authorized agent requires arbitration as hereinafter provided or not if the Executive Engineer in charge of the work has conveyed his decision to the contractor and no claim to arbitration has been filled with him by the contractor within a period of sixty days from the receipt of letter communicating the decision the said decision shall be final and binding upon the contractor and will not be a subject matter of arbitration at all if the Executive Engineer-in charge of the work fails to convey his decision within a period of sixty days after being requested as aforesaid the contractor may within further sixty days of the expiry of first sixty days from the date on which request has been made to the Executive Engineer in charge, that the matter in dispute be referred to arbitration as hereinafter provided. (2) All disputes or differences in respect of which the decision is not final and conclusive shall at the request in writing of either party, made in communication sent through registered AD post be referred to the sole arbitration of any serving Superintending Er. Or Chief Er. Of Haryana PWD (B&R) Branch to be nominated by designation by the Engineer in Charge Haryana PWD B&R Branch at the relevant time, it will be no objection to any such appointment that the arbitrator so appointed is a Government servant or that he had to deal with the matters to which the contract relates and that in the course of his duties as a Government servant he had expressed his views on all or any of the matters in dispute. The arbitrator to whom the matter is originally referred being transferred or vacating his office his successor in Arbitration Case No. 145 of 2008 [4] office as such shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. In case the arbitrator nominated by the Engineer in Charge is unable or unwilling to act as such for any reason whatsoever the Engineer in Charge shall be competent to appoint and nominate any other Superintending Engineer or Chief Engineer as the case may be as arbitrator in his place and the Arbitrator so appointed shall be entitled to proceed with the reference. 3. xx xx xx 4. xx xx xx 5. xx xx xx 6. xx xx xx 7. It is also a term of this arbitration agreement that where the party invoking arbitration is the contractor no reference for arbitration shall be maintainable unless the contractor furnishes to the satisfaction of the Executive Engineer-in charge of the work a security deposit of a sum determined according to details given below and the sum so deposited shall on the termination of the arbitration proceedings be adjusted against the cost, if any, awarded by the arbitrator against the claimant party and the balance remaining after such adjustment in the absence of any such cost being awarded the whole of the sum will be refunded to him within one month from the case of the award. AMOUNT OF CLAIMS RATE OF SECURITY DEPOSIT i) For claims below Rs. 10,000/- 2 % of amount claimed ii) For claims below Rs. 10,000/- and above and below Rs. 1,00,000/- and above. 5% of amount claimed. Arbitration Case No. 145 of 2008 [5] AMOUNT OF CLAIMS RATE OF SECURITY DEPOSIT Iii) For claims of Rs. 1,00,000/- and above. 10% of amount claimed. The stamp fee due on the award shall be payable by the party as desired by the arbitrator and in the event of such party's default, the stamp fee shall be recoverable from any other sum due to such party under this or any other contract.” 3. At the very out set, learned counsel for the petitioner states that the only ground taken by the respondents for not appointing an arbitrator is that the petitioner has not deposited the security as required under sub clause 7 of clause 25-A of the agreement. He further submits that if four weeks time is given, the requisite security would be deposited now. 4. Mr. Rathee, Addl. Advocate General, Haryana appearing for the State states that in case the petitioner deposits the security, an Arbitrator shall be appointed as per the arbitration clause. 5. In view of the statement made by learned counsel for the parties, this petition is allowed with a direction that in case the petitioner deposits the security as stipulated under sub clause (7) of arbitration clause 25 of the agreement within a period of four weeks from today, the respondents shall appoint an Arbitrator within four weeks thereafter. In the meanwhile, the parties will exchange the statements of claim and response thereof. The statement of claim be supplied to counsel for the respondents within four weeks from the date of appointment of arbitrator and response to the statement of claim shall be supplied to the counsel for the petitioner within four weeks Arbitration Case No. 145 of 2008 [6] thereafter. The parties shall appear before the Arbitrator on 9.7.2010 at 4.00 P.M. or on an agreed date convenient to the parties but not later than a fortnight from the date of appearance as directed aforesaid. The Arbitrator shall render his award within six months from the date of first appearance of the parties. Petition stands disposed of. (MUKUL MUDGAL) CHIEF JUSTICE 09.03.2010 'ravinder'