lfjJliii^iK-2:IT'::^?-' m. B^Si^:M:. M^i^Vi. m ^^. __Sy< ^^.^.^^:^ -•-..•';^''K<::"^^.^^fc^^. aSpnf eAmseAijqs"»*A -/^>s ? ':1-. M '.^;:1 iiiiii(^i:ii!iiiiHi©t@)^^:'.iii©d'. ,-|||||B^i||^^|||^|||l||;|-||lO^J .^;^|^t^|^^^|||^||^|M|^.|| ^<||||i||^ffi|||g||||||||^^ ^svffsfa&.l |^^^|i|d^|^,Ii|m|||||^ l|||%lil^l^jl|j|il||||||^^jl^ ^l^lilNI^BilKliiffllltsl^ ||||^|^|^|||^|||^|ni|W J|||||j^^^|^|g!B|1^|j||||^ |l|^^^|^^^|^|i^j||| •iKiiiiiiliiliiltlllUl^lll^if);1 SiSiS&iJI^s^ '^ i^ ^...'; 'lill'MHBIili l^s^l?tf'^!ltl}88BIJI ^!l:i^^^i'^?;w^ll^11ml :,:'''::t'liUBB •l^ilBiWKil! ^:fy•81 ra ^ .. -^ . HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Viiav Kumar Shrivastava. J. M.C.C.No.72 OF 2004 Applicant M/s. Satjas Glorocks(P) Ltd., Khurana Cold Storage, Ashram, G.E. Road, Raipur, Through its Director Shri Kanmatjit Singh Khurana, Aged about 42 years, r/o. Civit Lines, Raipur (CG) Versus Respondents 1) Bharat Aluminium Company, Ltd., through the Managing Director, Korba, Dist. Korba, Chhattisgarh. 2) The General Manager, (Commercial), Bharat Aluminium Company Ltd., Korba, Dist. Korba (CG). \ Present Mr. Anand Kumar Tiwari, counsel for the applicant. Mr. P. Diwakar, Sr. Advocate with Ms. Synite Jain, counsel for respondents. ORDER (Passed on S January, 2006) •- r"- This application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") to appoint an Arbitrator for ad|udication of the disputes arise between the parties in cOnnection with arbitral agreement. (2) The applicant was awarded the contract for Mining and Transportetion of Bauxite from the captive mines of the respondents at Majnpat to their Korba Plant for the period of three years and agreement thereof was executed and signed on 06/03/2002. The terms and conditions of the agreement contains Arbitration Clause i.e.33 which reads as below. "33.1: Any dispute of difference of any natufe whatsoever, any clalm, cross clwm, counter claim and set off by fcbe UCompanyn against the "ContrBcto^ or regardng any nghts, liabitity, act omission or account of any of the parties hefeto an'sing out of or OT relaffon to the agieement shall be fefetred to ffie sote arbftration of fhe arbftrator nominated by fhe President/Managfng Dfrector of the "Compan^ ft is a/so a ierm of ffiis contract fffat no person t^er than a person nominated by the President/Managing director of "Company" as aforesaKl shall act as Arbitrator, herei/ncter. The awaid of ffve Aftoftrator so appo/nted shall be ftnal cohclusfve and birKling on all parises to fhe agreement subject to the modtficaffon or re-enacfment thereof and the rules made hereunder for ttie time being in fofce shall Qpply to fft^ arbi^ation proceeding under thss c{ause. 33.2; The sward shaff be macte in wnting and pubSshed by ff?e afbitrator within iee nwnffis after entering upon the reference or wihin such extended ifme nor exceedng further sfx monffis, as fhe sote aititrator shall be cfeemed to have irrevocably given their conwnt to tbe aflb/frafor to mate and pubSsh ^e awarcf wiWn the penod refened to herwn above and shaff rwt be enfitfed to raise objecfk>n or protest thereto uncter any aircumstan<^s whatsoever. 33.3: The arbitrator shall have power to order arvS direct effher of fhe parties to abtcte by observe and perform aff such directions as having regard to the maiters in offence i.e., dispute before him. The arb'itrator shall have sft summary power (he arbilrator shall have and may take such ewdence oraVor documentary as the arbitrator in his absolute dfscre^aj ffiinks fitand shall be enWted to exercise all powers under the Arbitration and Conciliatton Act, 1996. „ 33.4: A!l dispute, diffefence, claims and questions wfrateoever whfch may arise dther during the con^nuance of Wis cwsh-act or afterwards between "Company" and the "Contracior" relating to the Snterpfeta^on ancf forexcepSons of any c/ause of ffiiis contract or of any act, deed or om'isson of anypartw as fo any ofher mafter or any way refeiffns to ff^@ nghts, duties, obligations or {iabiffties or either party u/?cter these clauses wiil be settled by arbitra^on in accordance w»'fh fhe ru/es of ari>»'trat»onof Indian Councif of AriMfrafor and ffie awafd made in pursuance ffiereofshall be bincSng on the parffes"_-_^ c.: ..^. 3) Respondents unilaterally and wthout consent of the appljcant amended the agreement. Respondents requested the applicant for engaging an additional transport vehicles as a result of that applicant deployed adctitional multi axial vehicle by making a huge investment of about Rs.250 lakhs, but the Executive Engineer of PWD, Korba issued instructions to stop using multi axiat vehicles on the ground that bridges on the roads are o!d and weak. Respondents again amended the agreement unjlaterally and without consent of the applicant vide their letter dated 09/10/2002. Respondents started deduction @ Rs.5/- (Rupees Five) per metric ton as Panchayat Tax in contravention of the contract and without obtaining the consent of the applicant. Respondente again unilaterally agreed for enhancing the rate of transportation by Rs.50/- (Rupees Fifty) per metric ton and shifted the said burden on the applicant. Respondente without obtaining any consent of the applicant arbitrarily and unilaterally introduced short-term incentive scheme and deducted Rs.4.00,000/- (Rupees Four lakhs) from the bills of the applicant on account of Group Insurance Policy. v 4) Applicant requested the respondents wde letter dated 22/03/2003 for the resolution of the natural problems arising in the contract and requested for remedial measures with the reminder on 31/10/2003. Applicant vide letter dated 26/12/2003 made a detailed representetion before the respondents and requested for resolving the disputes by means of Arbitration Proceedings by jnvoking the provisions of Clause No.33 i.e., Arbitral Clause and thereafter applicant stopped to work with effect from 05/01/2004. Respondents instead of making an appointment of Arbitrator denied any kind of dispute betweenthe applicant and respondents and communicated their decisJQD vide letter dated 27/04/2004. 5) Respondents denied the claim of the applicant and averred in their reply that they never asked to deploy any vehicle of any particular make for the purpose of transportatjon of bauxite from the mines to ttie plant. When the employees went on strike in the month of February, 2003, respondente to resolve the strike for gain and benefit of the contractors took appropriate action and the incentive scheme was introduced by the respondents to boost the contractors for achieving their target and to gain some extra benefit. As per term of contract, it was the duty of the contractor to obtain Group Insurance Policy in favour of the labourers. The amendment has been made in accordance with the provisions of the contract. The revision of the rates as desired by the applicant was not within the scope of the contract. The applicant has failed to execute the agreement and consequently, respondents suffered huge loss. Even no proper notice was issued to terminate the contract and for appointment of Arbitrator. As per contract the sole arbitrator is to be nominated by the President or by the Managing Director. 6) Both the parties in support of their case have filed affidavit and documents. 7) From the averment made by both the parties, it is apparent that a number of disputes have been raised by the applicant and have been denied or under some pretext accepted by the respondent. Therefore, the dispute arising out of the contract is apparent which requires adjudicatjon by the Arbitrator. Annexure A/16 is a tetter dated 26/12/2(X)3 issued by the applicant to respondents for setUement of disputes/case. On 05/01/2CX)4 a reminder (Annexure A/17) was issued by the applicant to respondents. Reply sent by the respondente_to applicant is Annexure A/18 dated 27/04/2004 and the said letter has been sent to the applicant along with their letter dated 03/01/2004. Respondents very specificaljy stated that all the issues raised by the applicant are beyond the terms and conditions in the contract and are not related to the contract, ttierefore, there exists no dispute which can be referred to arbitration under Clause 33 of the agreement and by stating that none of the claims are acceptable under Clause 33 of the agreement respondents denied appointment of arbitrator in accordance with arbitral clause which empowers to nominate the .arbitrator by the President/Managing Director of the Company. k._ 8) It is apparent that between both the parties in relation to contractua! work a written contract is there which contains arbitration clause. Although a number of disputes for adjudication have been raised and apparently exist yet, respondents failed to exercise their power by nominatjng arbitrator for adjudication of the dispute. Therefore, applicant rightly preferred this application for appointment of arbitrator in accordance with Section 11 (6) of the Act. Being a Judge nominated by » Hon'ble the Chief Justice, 1 have to proceed to appoint an Arbitrator for the disputes raised by the applicant and arose out ofthe contract between the parties. 9) After due consideration of all the facte, disputes and jurisdiction within which the dispute arose^ I appoint Shri Justice PNS Chouhan, retired Judge as Arbitrator for settlement of the disputes by the Arbitrator in accordance with the rules of Arbitration of Indian Council of Arbitrator and prevailing law/rules, subject to his consent^ Sd//- j V.K.Shrivastava \ Judge Raju