Arbitration Case No. 93 of 2009 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Arbitration Case No. 93 of 2009 Date of Decision: 2.2.2010 Sandeep Kundu ..Petitioner Versus Chief Administrator 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. Kunal Dawar, Advocate, for the petitioner. Mr. Rajesh Sehgal, Advocate for the respondents. *** MUKUL MUDGAL, C.J. (Oral) 1. 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(ii) of the agreement contains the Arbitration Clause which reads as under:- “All disputes or difference in respect of which the decision is not final and conclusion shall at the request, in writing, of either party, made in a communication sent through Registered A.D. Post, be referred to the sole arbitration of Arbitration Case No. 93 of 2009 [2] any serving Superintending Engineer of HUDA, to be nominated by designation by the Engineer-in-Chief/Chief Engineer, HUDA, at the relevant time. There will be no objection to any such appointment that the arbitrator so appointed is a Government Servant/in service of HUDA or that he had to deal with the matters to which the contract relates in the course of his duties as a Govt. Servant/in service of HUDA he has expressed his views on all or any of the matter in dispute. The Arbitrator to whom the matters is originally referred being transferred or vacating his office, his successor-in-office, as such shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. Or xx xx xx iii) xx xx xx iv) xx xx xx v) xx xx xx vi) xx xx xx vii) It is also a term of this arbitrator agreement that were the party invoking arbitrator is the contractor, no reference or arbitrator 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 or whole sum in the absence of any such cost being awarded will be refunded to him within one month from the date of the award. Amount of claims: Rate of Security deposit i) For claims below Rs. 10000/- 2% of amount claimed. ii) For claims of Rs.10000/- and above & below Rs. 1,00,000/- 5% of amount claimed. Iii) For claims of Rs. 1,00,000/- 7 ½% of amount claimed. and above. 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. viii) xx xx xx xx ix) xx xx xx xx x) xx xx xx xx xi) xx xx xx xx xii) xx xx xx xx.” 3. Learned counsel for the petitioner contends that the petitioner, while raising a dispute regarding some payments due to him, Arbitration Case No. 93 of 2009 [3] had sent a letter invoking arbitration clause on 4.4.2009, but respondents did not appoint any arbitrator as per arbitration clause. Mr. Sehgal, learned counsel for the respondents contended that Arbitrator could not be appointed in this case as the amount in dispute has already been paid. 4. Since the petitioner has raised a dispute with regard to the payment of certain amount, in my view, it is itself a dispute which indeed would be decided by the Arbitrator and therefore the plea raised by learned counsel for the petitioner is not sustainable. 5. The other plea raised by learned counsel for the respondents is that no notice in writing was given to the respondents before seeking appointment of arbitrator. This plea raised by learned counsel for the respondents is also not sustainable because as contemplated by clause 25-A(ii) of the agreement extracted above, in my view, the legal notice under Sections 8 and 11 of the Act given on 4.4.2009 is sufficient compliance of the terms of the said clause. 6. Accordingly, this petition is allowed. The respondents are directed to appoint an Arbitrator in terms of the arbitration agreement subject to deposit of security deposit as contemplated in clause 25(vii) of the agreement. The security deposit shall be made within four weeks. The respondents shall thereafter appoint an Arbitrator within four weeks. Within four weeks of the intimation of the appointment of the arbitrator, the petitioner will prefer statement of claim and response thereto shall be supplied to the counsel for the petitioner within four weeks thereafter. The parties shall appear before the Arbitrator on 11.06.2010 at 4.00 P.M. or on an agreed date convenient to the parties Arbitration Case No. 93 of 2009 [4] but not later than a fortnight from the date of exchange of pleadings as directed aforesaid. The Arbitrator shall make an endaveour to dispose of the reference not later than six months from the date of first appearance of the parties. (MUKUL MUDGAL) CHIEF JUSTICE 02.02.2010 'ravinder'