IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb Case No. 54 of 2007 (O&M) Date of decision: 20.4.2011 S. Gurmukh Singh …..petitioner vs. Amritsar Improvement Trust …..respondent CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Jai bhagwan, Advocate for the petitioner. Mr. Jaspreet Singh, Advocate for respondent HEMANT GUPTA, J Petitioner has sought appointment of an Arbitrator in respect of dispute arising between the parties arising out of an Agreement dated 8.12.1995. Clause 9 of the said Agreement incorporates Clause 24 of MW4 by reference. The relevant Clause of the Agreement and Clause 24 of MW4 read as under: - Clause 9 of the Agreement: - In case of any dispute arises between the parties, the Arbitration Clause 24 of MW4 shall apply. xx xx MW4 Percentage Rate Tender & Contract for Works General Rules & Directions for the guidance of Contractor. xx xx Arb Case No. 54 of 2007 Clause 24: - If any question, difference or objection whatsoever shall arise in any way connected with or arising out of this instrument or the meaning or operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as decision of any such matter is herein before provided for and has been finally decided accordingly or whether the contract should be terminated or has been rightly terminated and as regards the rights and obligation of the parties as the result of such termination shall be referred for arbitration to the Superintending Engineer of the circle of the Building and Road Branch of the Public Works Department concerned for the time being and his decision shall be final and binding and where the matter involves a claim for or the payment or recovery or deduction of money, only the amount if any awarded in such arbitration shall be recoverable in respect of matter so referred. It is the case of the petitioner that he has completed the work on 1.8.2000. The final payment has been made on 12.1.2001 except the amount of earnest money and security. Earlier, the petitioner filed a writ petition bearing No. 17797 of 2001 before this Court which was disposed of on 6.5.2002 with the direction to the respondents to refund the amount of security within a period of one month. Liberty was granted to the petitioner to seek appropriate legal remedy for claiming interest. Respondents were also given liberty to avail 2 Arb Case No. 54 of 2007 remedy for claiming compensation from the petitioner in lieu of the defects, if any, in the work executed by him. It is the case of the petitioner that in terms of the said directions, security amount was released. In respect of the remaining dispute, petitioner served a notice on 10.6.2002. The said notice was sent under registered post. The receipt is on the record. Since, the Arbitrator was not appointed, the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 was filed before the learned Civil Judge (Senior Division), Amritsar but subsequent to the judgment of Hon’ble the Supreme Court State Bank of Patiala vs. Patel Engineering Limited and another, 2005(8)SCC 618 , the matter has been sent to this Court. In reply to the said petition, respondents have averred that as per the information given by the staff, notice sent by the petitioner has not been received. A perusal of the record shows that the petitioner has sent a notice dated 10.6.2002 under registered post. The arrival postal receipts have been produced on record. The postal receipts clearly show the address of respondent as Chairman, Amritsar Improvement Trust, Amritsar. In view of the said fact, the stand of the respondent that they have not received notice is not tenable. Still further, 3 Arb Case No. 54 of 2007 the present petition was filed on 11.9.2007 but for more than 8 years, respondent has not appointed any Arbitrator. Keeping in view the fact that the dispute between the parties has arisen as detailed by the petitioner in the notice dated 10.6.2002, therefore, disputes are required to be decided by an Arbitrator. In view of the said fact, Superintending Engineer, PWD, B&R, Amritsar is appointed as an Arbitrator to adjudicate upon the dispute between the parties. Learned Arbitrator may fix his fee with the consultation of the parties with liberty to the parties to seek directions, if any required, in the matter of fee. Disposed of. (HEMANT GUPTA) JUDGE 20.4.2011 preeti 4