IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb. Case No. 164 of 2008 (O&M) Date of decision: 18.5.2011 M/s Mehta & Company …..Petitioner vs. State of Haryana and ors …..Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Ashwani Talwar, Advocate for the petitioner. Mr. A.K.Gupta, Additional Advocate General, Haryana for respondents. HEMANT GUPTA, J CM No. 10636-CII of 2011 Application is allowed. Annexures P-23 to P-25 are permitted to be taken on record. Arb. Case No. 164 of 2008 Petitioner has sought appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, (for short the ‘Act’) in respect of the dispute arising between the parties out of a contract for constructing Institute building in Canal Colony at Kurukshetra. In pursuance of the said contract, Agreement was executed on 29.7.1990. The copy of which has been appended as Annexure P-2. The said Agreement had an Arbitration Clause to resolve the dispute between the parties by an Arbitrator from amongst three officers of the rank of Superintending Engineer or higher to be Arb. Case no. 164 of 2008 sent by the Chief Engineer Irrigation Works (Haryana) to the Contractor. It is the case of the petitioner that the work allotted was completed in the year 1991-1992. The petitioner was not paid the payment due which led to filing of CWP No. 14068 of 1994. The said writ petition was disposed of by this Court on 30.9.1994, after it was held that the respondents have unnecessarily delayed the matter. A direction was given for early decision of the appeal filed by the petitioner. In pursuance of such directions, a sum of Rs. 9029.09 paise was found to be due and payable to the petitioner vide the communication dated (Annexure P-12) but a sum of Rs. 8,707.00 was paid to the petitioner vide the communication dated 26.7.1999 (Annexure P-13). It is the case of the petitioner that within 30 days i.e. on 24.8.1999, he disputed the part payment and sought resolution of the dispute by an Arbitrator. He reiterated such request in his communication dated 7.1.2000 (Annexure P-15). Since, the dispute was not referred to Arbitrator, the petitioner under the mistaken advice filed a petition under Section 8 of the Act before the Civil Court. Learned Civil Court allowed the application on 11.3.2005 (Annexure P-16) and appointed an Arbitrator. The appeal against the said order filed by the State was allowed vide the order dated 20.8.2005 (Annexure P-17) holding that it is not the Arbitration and Conciliation Act, 1996 which is applicable but the Arbitration 2 Arb. Case no. 164 of 2008 Act, 1940 is applicable. The petitioner challenged the said order before this Court and in CR No. 6361 of 2005, this Court returned a finding that the proceedings initiated by the petitioner under Section 8 of the Act was without jurisdiction and therefore, the order passed by learned trial court as well as the learned first Appellate Court are without jurisdiction. Liberty was given to the petitioner to avail his remedy in accordance with law. It is thereafter, the petitioner filed the present petition under Section 11(6) of the Act. In the reply, it is contended that the claim of the petitioner was declined in terms of the direction of this Court on 21.6.1995 and that the period of limitation of 30 days will start from that date to seek resolution of the dispute by an Arbitrator. Since, no dispute was raised between 30 days, the petitioner cannot seek resolution of the dispute by an Arbitrator in a petition under Section 11(6) of the Act before this Court. Learned counsel for the respondents could not point out any communication dated 21.6.1995. Such communication has not been produced on record. It is then contended that vide the communication dated 8.1.1996 (Annexure P-12), a sum of Rs. 9029.09 paise were found due and payable to the petitioner. It was on the said date, the cause of action has arisen to the petitioner to claim the balance amount. Since, the petitioner has not raised any dispute between 30 days of the said communication, the 3 Arb. Case no. 164 of 2008 petition for appointment of an Arbitrator is barred by limitation. Mr. Talwar has pointed out that the respondents have made the part payment vide the communication dated 26.7.1999 and the cause of action for the remaining amount would arise on the said date. The petitioner has served a notice within a period of 30 days vide the communication dated 24.8.1999 (Annexure P-14). In an application filed by the petitioner under Section 8 of the Act, the petitioner has pleaded that a request for appointment of an Arbitrator was made in the communication dated 24.8.1999. The petitioner asserts that he has produced the said letter before the civil Court which contain the words ‘‘or the Arbitrator be appointed”. In reply to the said petition, the State has not denied such request having been made. The petitioner in the communication dated 7.1.2000 has reiterated the request of appointment of Arbitrator and that the appointment of an Arbitrator was sought in the communication dated 24.8.1999. After hearing learned counsel for the parties, I find that there exists dispute as to whether the petitioner had requested for appointment of an Arbitrator in the communication dated 24.8.1999. It is one of the disputes which are required to be decided by an Arbitrator. Learned Arbitrator shall decide the claim of the petitioner on merits and shall also consider the genuineness of the letter dated 4 Arb. Case no. 164 of 2008 24.8.1999 including that of the words ‘‘or the Arbitrator be appointed” to take a final view in respect of the admissibility of the claim of the petitioner. In view of the said fact, present petition is allowed and Mr. Vinod Jain, District and Sessions Judge (Retd.) resident of H. No. 1, Chaman Gardan, Railway Road, Karnal is appointed as an Arbitrator. Learned Arbitrator may fix his fee in consultation with the parties on the first date of hearing. (HEMANT GUPTA) JUDGE 18.5.2011 preeti 5