HIGHJCOUrLOF_CHHATTISGARH, BXLASPUR ARBITRATION APPLICATION No. 04 of 2010 SB: Hon'ble Shri Justice Dhirendra Mishra Vs. Appearance: Mr. A. K. Mishra, counsel for the applicant. Mrs. Naushina Ali, counsei forthe non-applicant. 1. 2. ORDER (10.02.2011) Heard on I.A.No.2, an application for taking documents on record. Not opposed. Application is allowed. Documents are taken on record. The applicant, by this application under section 11(6) of the Arbitration and Conciliation Act, 1996 (for brevity 'the Act'), has prayed for constitution of an Arbitral Tribunat for referring the dispute between the parties arising out of the contract agreement 12/ROB/Uslapur/CEC/SECR/07 dated 24th of August 2007 for constructson of road over APPLICANT W/s. Gor-dhandas^^^^^^^ Engineers & Contractors, a partnership firm havip.g its office at 52, 3airam Complex, Sharda Chowk, Raipur, C.G. represented by the partner Mr. Amrit G. Jadwani, aged about 50 years, son of late Shri Gordhandas Jadwani, resident of Ahmedji Coiony, Raipur (C.G). NON-APPLICANTS 1 1 Union of India, through the ! General Managter, South East i Central Raiiway, Bilaspur C.G. 1 2 | The Dy. Chief Engineer (C), S.E.C. 1 Raiiway, Biiaspur (C.G) ^'•M1'. ' ^",, ^ "--€/' ^.^&y 'K-^ty@.:y!-^ V ^ bridge (span 3 x 30 m approx) at Km.No.726/1-2 on Bilaspur-Katni Une in lieu of existing level crossing at Uslapur. Grievance of the applicant is that the aforesaid contract was unilaterally terminated by the respondents on 30th of April, 2009 vide Annexure P-7 after issuing show cause notice dated 09.09.2008 (Annexure P-4) under clause 62 of the Agreement. The applicant served the respondents with a !ega! notice dated 2nd of Sept. 2009 claiming certain damaqes on account of unilateral termination of the contract vide Annexure P-9 and it was further stated that in case the claim of the applicants are not accepted the Arbitral Tribunal as provided in clause 64 of the agreement may be constituted. However, the respondents denied the claim of the applicant but did not constitute the Arbitral Tribunal. Thereafter, again two notices dated 23.11.2009 & 30.12.2009 were sent to the respondents vide Annexure P-11 & P-12 under clause 64 of the contract agreement, but the same were never replied. Finally the applicant has fjled the instant apptication for appointment of the arbitrator. The respondents in their reply have contended that the first legal notice Annexure P-9 was addressed to Generat Manager of the respondents whereas as per the prevailing practice for the purpose of invoking Clause 64 of the Agreement, demand for cohstitution of Arbitral Tribunal js to be made to the General Manager (Arbitration). The subsequent letters allegedly sent by the applicant vide ^ ^^^ »- ^^^.^ ^ Annexures P-10 & P-11 were never received in the office of the respondents. It was further argued that the respondent-Railways has already submitted a list of 3 empanelled Arbitrators to the applicant vide Annexure R-l with a request to chose any of two persons as Arbitrators to be appointed. However, since the applicant did not respond to the offer made by the respondents, the General Manager (Arbitration) has already constituted Arbitral Tribunai on 06.09.2010 vide Annexure-A. There is no dispute that the demand for constitution of Arbitral Tribunal was made by the applicant on 02.09.2009 (Annexure P-9). From perusal of Clause 64 of the agreement, it is manifestly clear that the request is to be made to the General Manager of the respondents and there is no mention that the same is to be addressed to the General Manager (Arbitration). It is also not in dispute that the Arbitral Tribunal was constituted after the petitioner has filed the instant applicatlon u/s 11(6) of the Act before this Court and after receipt of the notice from this Court. It is well settled law that when a party having right to appoint arbitrator not doing so withjn 30 days ofthe notice served upon him, the said party loses its right to appoint arbitrator and the application u/s 11(6) of the Arbitration Act is maintainable. Thus considering the undisputed facts in the present matter, I am of the opinion that a case for appointment of arbitrator is made out in this case. ..^^.^ 1, -^^^Jj 0^ 7. Learned counsel for the parties jointly propose the name of Hpn'ble Shri Justice V. K. Agrawal, retired Judge of High Court of Madhya Pradesh as Chairman and Shri Mohan Dudeja CSE/SECR/BSP/Bilaspur and Shri S.K. Gupta, C.E/ Construction/II/SECR/Bilaspur as the members. 8. In view of the above submissions of learned counsel for the parties, I hereby appoint Hon'ble Shri Justice V.K. Agrawal, formerjudge ofthe M.P. High Court, as Chairman subject to his consent. Hon'ble the Chairman may fix his terms and conditions for remuneration. I also appoint Shri Mohan Dudeja and Shri S.K. Gupta of South Eastern Central Railway, Bilaspur, as members of the Arbitral Tribunal. The Arbitral Tribunal is allowed six months time for passing award from the date of entering into the arbitration proceedings. 9. Registry to intimate Hon'ble Shri Justice V. K. Agrawal (Retired) about his appointment as Chairman of the Arbitral Tribunal and send all the papers alongwith addresses of the parties. The intimation be also sent to the above members of the Tribunal. 10. Parties are also directed to approach Hon'ble Shri Justice V.K. Agrawal, who is presently residing at B-12, Akriti Garden, Nehru Nagar, Bhopal(M.P) 462 003 as also other two members and submit papers and take part in the Arbitration proceedings. Dhirendra Mishra Judge Rao