Modification App. No. 15118 of 2006 Urgency App. No. 2725 of 2007 IN ARBAP No. 07 of 2006 Hon. Prafulla C. Pant, J. Shri Shobhit Saharia, learned counsel for the petitioner and Shri Arvind Vashisth, learned counsel for the respondent, are present. This is application No. 15118 of 2006, for modification of order dated 31.08.2006. Learned counsel for applicant/petitioner does not press the application. The application (No. 15118 of 2006) is dismissed as not pressed with liberty to seek remedy available under the law. Also, urgency application No. 2725 of 2007, stands disposed of. (Prafulla C. Pant, J.) 09.01.2008 S IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Arbitration Application No. 10983/2006 In Arbitration Petition No. 07 of 2006 M/s Darshan Lal through its Proprietor U.K. Singhal, R/o 209/1 Thapar Nagar, Street No. 4, Meerut. …………… Petitioner Versus Bharat Sanchar Nigam Ltd. Through its Chief Engineer (C) Uttaranchal, Civil Zone, 3 –Tyagi Road, Dehradun. …………… Respondent Mr. Shobhit Saharia, learned counsel for the petitioner. Mr. Arvind Vashistha, Asstt. Solicitor General for Union of India. Hon’ble Prafulla C. Pant, J. This petition has been moved under Section 11 of the Arbitration and Conciliation Act, 1996, whereby request has been made for appointment of Arbitrator by the petitioner. 2) Heard learned counsel for the parties. 3) Admittedly, there is an Arbitration Clause in the agreement, between the parties. Clause 25 of the said agreement, is reproduced hereunder: “CLAUSE 25. Settlement of Disputes and Arbitration: Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, design, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work and a to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter: (i) if the contractor considers that he is entitled to any extra payment or compensation in respect of the works over and above the amounts admitted as payable by the B.S.N.L. or in case the contractor wants to dispute the validity of any deductions or recoveries made or proposed to be made form the contract, the contractor shall forthwith give notice in writing of his claim in this behalf to the Engineer-in-Charge within 30 days from the date of disallowance thereof for which the contractor claims such additional payment or compensation or disputes the validity of any deduction or recovery. The said notice shall give full particulars of the claim, grounds on which it is based and detailed calculations of the amount claimed and the contractor shall not be entitled to raise any claim nor shall the B.S.N.L. be in any way liable in respect of any claim by the contractor unless notice of such claim shall have been given by the contractor to the Engineer-in-Charge in the manner as within the time as aforesaid. The contractor shall be deemed to have waived and extinguished all his rights in respect of any claims not notified to the Engineer-in-Charge in writing in the manner and within the time aforesaid. (ii) The Engineer-in-Charge shall give his decision in writing on the claims notified by the contractor within 30 days of the receipt of the notice thereof. If the contractor is not satisfied with the decision of Engineer-in-Charge, the contractor may within 15 days of the receipt of the decision of the Engineer-in-Charge submit his claims to the conciliating authority named in Schedule ‘F’ for conciliation along with all details and copies of correspondence exchanged between him and the Engineer-in- Charge. (iii) If the conciliation proceedings are terminated without settlement of the disputes, the contractor shall, within a period of 30 days of termination thereof shall given a notice in the form prescribed by the B.S.N.L. to the Chief Engineer, Bharat Sanchar Nigam Limited in- Charge of the work or if there be no Chief Engineer, to the Administrative Head of the B.S.N.O. for appointment of an arbitrator to adjudicate the notified claims failing which the claims of the contractor shall be deemed to have been considered absolutely barred and waived. (iv) Except where the decision has been become final, binding and conclusive in terms of the contract, or difference arising out of the notified claims of the contractor as aforesaid and all claims of the B.S.N.L. shall be referred adjudication through the arbitration by the Sole Arbitrator appointed by the in-charge of the work or if there be no Chief Engineer, the Administrative Head of the said Bharat Sanchar Nigam Limited. It will also be no objection to any such appointment that the Arbitrator so appointed is a B.S.N.L. servant and that he had to deal with the matters to which the Contract relates in the course of his duties as B.S.N.L. servant. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever another sole arbitrator shall be appointed in the manner aforesaid by the said Chief Engineer. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each dispute along with the notice for appointment of arbitrator. It is also a term of this contract that no person other than a person appointed by such Chief Engineer, Bharat Sanchar Nigam Limited or the administrative head of the Bharat Sanchar Nigam Limited as aforesaid should act as arbitrator and if for any reasons that is not possible, the mater shall not be referred to arbitration at all. The conciliation and arbitration shall be conducted in accordance with the provisions of the Arbitration & Conciliation Act, 1996 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause. It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each disputes and claim referred to him. The arbitrator shall give reasons for the award. It is also a term of the contract that if any fees are payable to the arbitrator these shall be paid equally by both the parties. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any, by whom and in what manner, such costs or any part thereof, shall be paid and fix or settle the amount of costs to be so paid.” 4) The point in dispute sought to be referred is that neither during the carrying out of work in respect of the annual maintenance and repair work of telephone exchange Building, Saharanpur, nor on its completion, the respondent took any joint measurement and nor made any running payment with regard to the work undertaken by the petitioner. It is also submitted by learned counsel for the petitioner that without showing any bill or measurement, the Executive Engineer of the respondent department, asked the petitioner to sign on he final bill prepared by the him, and on his own send a cheque amounting to Rs. 1,35,088/- as payment of final bill. However, the same is accepted by the petitioner with protest. Learned counsel for the petitioner also submitted that the payment made to the petitioner was without getting his signatures on the final bill and without showing the bill or mentioning as to how the respondent reached the aforesaid figure of Rs. 1,35,088/-. It is further submitted that the petitioner suffered loss on account of illegal, irregular and arbitrary action on the part of the respondent. 5) On behalf of the respondent, it is submitted by the learned counsel that the petitioner is not willing for conciliation and is not turning up to appear in the conciliation proceedings despite Arbitrator being appointed in this case. It is also submitted that during the execution of work, the petitioner never showed any interest for joint measurement of work. Learned counsel for the respondent also submitted that the measurement was done in presence of persons duly authorized by the respondent department. It is further submitted that full and final settlement of petitioner’s bill was made to him which was prepare after final measurement and which was accepted to the petitioner, himself. 6) Though the dispute raised by the petitioner is covered under arbitration clause, but the parties are not agreeable to any single name acceptable to them. The matter relates to the work done by the petitioner in the respondent department, as such, some senior officer of the B.S.N.L., who knows the intricacies of the work and the rates claimed in the bill would be the best and appropriate person, in the facts and circumstances of the case, and can decide the claims in a better way. 7) In the above circumstances, considering the arbitration clause between the parties and the dispute, which is cognizable by the Arbitrator, the application for appointment of Arbitrator is allowed with the direction that Mr. Harbhagan Singh, Chief Engineer, Dehradun Circle, of the respondent department, is hereby appointed sole Arbitrator, who shall enter within one month from today into the arbitration with regard to dispute raised by the petitioner and deliver their award within six months thereafter. (The Misc. Application No. 10983 of 2006 also stands disposed of, accordingly). (Prafulla C. Pant, J.) Dt. 31st August, 2006. H. Negi