Arb.P. 6/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR The parties had entered into a contract on 24.1.2006 for executing the work Con struction of Regulator at Disutimukh and Associated works (under Borbhag Drainag e Development Scheme) amounting to ‘ 4,82,86,424.00. It appears that on or about 8.11.2006, the respondents issued a letter to the pe titioner under Clause 12 of the agreement substituting some items of work in lie u of Item No.12 of the contract order already issued. In terms of the schedule o f substituted items of work, the petitioner was required to carry them out at th e rates specified by the Chief Engineer (I & W). According to the petitioner, the rates were unrealistic and therefore, it object ed to the rates by its letter dated 18.1.2007. The petitioner asked for a review /enhancement of the rates and assured that it will execute the work within the s tipulated period. The respondents wrote back to the petitioner on 8.2.2007 to the effect that the work had not yet started and if no cause is shown for breach of contract, then t he agreement would be terminated. The petitioner wrote back to the effect that it has shown cause on several occas ions and had explained the delay to the respondents and had requested for pendin g issues to be sorted out but to no avail. Not satisfied with the response given by the petitioner from time to time and ap parently due to the undue delay in completion of the work, which had not yet sta rted, the respondents issued a latter under Clause 3 of the agreement on 17.8.20 07 rescinding the contract and forfeiting the security deposit. Feeling aggrieved, the petitioner wrote a letter on 7.9.2007 requesting the resp ondents to review the entire matter but when there was no suitable response to t his, the petitioner made a final claim of ‘2,25,23,355.00 by its letter dated 5. 1.2009 and requested for the appointment of an Arbitrator. Since no Arbitrator was appointed by the respondents, the present petition is fi led for exercising power under Section 11(6) of the Arbitration and Conciliation Act, 1996. The ground taken by the respondents for opposing this petition is that there has been an unusual delay in the matter of making a representation to the responden ts and in raising the final bill. It is also contended that the claim for arbitr ation has not been made within a period of 90 days from the date of cancellation of the contract, that is, 17th August, 2007. For this reliance has been placed on Clause 25 of the agreement between the parties. Having regard to the contentions of the parties and considering the materials on record, I find that there is no unusual delay in the petitioner making a claim for appointment of an Arbitrator and even if there is any such delay, this may h ave an impact on the quantum of interest that may be awarded to the petitioner. Merely because there is some delay in making the claim, that by itself cannot de feat the rights of the petitioner. Insofar as the Clause 25 of the agreement between the parties is concerned, this deals with making a reference to arbitration. The relevant clause dealing with the 90 days period of limitation reads as follows:- It is also a term of the contract that the contractor(s) do/does not make any d emand for arbitration in respect of any claim(s) in writing within 90 days of re ceiving the intimation from the Govt. that the final bill is ready for payment, the claim of the contractor(s) will be deemed to have been waived and absolutely barred and the Govt. shall be discharged and released of all liabilities under the contract in respect of these claims. It is clear that the 90 days period of limitation as contended by the re spondents would start only after the contractor presents the final bill. In this case, the petitioner as the contractor made a request for appointment of an Arbitrator along with its final bill dated 5.1.2009. As such, it cannot be s aid that the claim made by the petitioner is beyond the period of 90 days stipul ated by Clause 25 of the agreement between the parties. Since the Chief Engineer, CPWD, who is In-charge of the work, has not appointed an Arbitrator in terms of the request made by the petitioner, there is no option left but to appoint an Arbitrator in accordance with Section 11(6) of the Arbit ration and Conciliation Act, 1996 in respect of the disputes that have arisen be tween the parties on account of the alleged failure of the petitioner to execute the work on account of the alleged failure of the respondents to fix realistic rates for the substituted items of work. Under these circumstances, I appoint Justice SP Rajkhowa, a retired Judge of thi s Court to be the sole arbitrator to adjudicate the disputes between the parties . This petition is disposed of in terms of the above.