1 S.B. CIVIL MISC. ARBITRATION APPL. NO.30/08 (M/s Rajesh Engineering & Constractors Vs. RR.V.P.N.L. & Anr. ) DATE OF ORDER : 4.8.2009 HON'BLE MR. PRAKASH TATIA,J. Mr. BM Agarwal for the applicant. Mr. RK Singhal for the respondents. <><><> Heard learned counsel for the parties. It is not in dispute that agreement No. 1 (2003-04) was executed between the parties containing clause 23 which provides for settlement of dispute through Standing Committee and that condition No. 23 referring matter to the Standing Committee is whether a clause of arbitration or not has been considered by the Division Bench of this Court in the case of M/s Suri Constructions Vs. State of Rajasthan & Ors. reported in 2006(1) CDR 338 and it has been held by the Division Bench of this Court that clause 23 of the agreement is an arbitration clause. The petitioner's contention is that he served notice upon the respondents under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of arbitrator for deciding the dispute between the parties, that notice was served upon the respondent No.2 on 26.8.06 in the form of letter and copy of that letter has been placed on record as Annex. 13. 2 The petitioner deposited requisite amount of Rs. 5,993/- for referring the matter to the Standing Committee vide receipt No.80 dt. 28.8.06, the copy of which has been placed on record as Annex. 14. The petitioner's contention is that respondents failed to refer the matter to the Standing Committee in terms of the clause 23 of the contract and, therefore, petitioner is entitled for appointment of the arbitrator. Reply has been filed by the respondents and it has been submitted that the matter has already been referred to the Standing Committee vide decision on 18.9.2006. The copy of this decision has been placed on record as Annex. R1/1. It is submitted that petitioner himself on 6.11.03 submitted his claim in triplicate before the Standing Committee and copy of the letter of petitioner is placed on record as Annex. R/1/2. Respondents also placed on record the communication dated 16.4.2007 whereby some defects have been pointed out that though the matter has been referred to the Standing Committee but from preliminary examination two points are required to be made clear and those two points are factual report on the representation of the petitioner is needed; point wise agenda of Settlement Committee is also required. On this communication the Superintendent Engineer concerned vide 25.5.2007 submitted the comments in respect to the queries raised by communication dated 16.4.2007. There are other documents 3 which according to learned counsel for the respondents reveals that the matter is under consideration of the Standing Committee. Learned counsel for the petitioner has serious objection and vehemently stated that in fact the dispute has not been referred to the Standing Committee. There is only recommendation of the officer to send the matter for settlement of dispute under Clause 23. It is also submitted that respondents have not placed on record the copy of the order by which the matter was in fact sent to the Standing Committee. It is also submitted that the respondents once failed to appoint arbitrator or send the matter to the Standing Committee within 30 days from the date of receipt of the request of the petitioner for appointment of arbitrator, they lost their right to appoint the arbitrator or settlement of the dispute under Clause 23 through Standing Committee. Learned counsel for the petitioner further pointed out that from letters placed on record it is clear that after much delay notice was given to the petitioner just to show that dispute has been referred to the standing committee and that is nothing but an after-thought. I considered the submissions of learned counsel for the parties and perused all material placed on record. The clause 23 is a clause for settlement of dispute by way of arbitration and 4 that is to be by Standing Committee. Under clause 23 it has been provided that all dispute referred in clause 23 shall be referred for decision to the empowered standing committee which may be consisting Chief Engineer (Civil)/ Additional Chief Engineer (Civil), Chief Controller of Accounts and Superintending Engineer (Law) or a committee consisting by C.M.D., Director (F&CA). Chief Engineer (Civil)/ Additional Chief Engineer (Civil), Superintending Engineer ( Law). As per clause 23 itself the engineer incharge on receipt of application alongwith prescribed fee ( the Fee would be two percent of the amount in dispute not exceeding Rs. One Lac) from the contractor shall refer the disputes to the committee within period of one month from the date of receipt of application. The petitioner requested for sending matter to the Standing Committee vide letter dated 26.8.06 and deposited requisite fee on 28.8.2006. The Superintendent Engineer concerned decided to refer the matter to the settlement committee by saying “ complete case is submitted with the recommendation for sending the case to settlement committee”. In view of the above, the engineer incharge within a period of one month referred the dispute to the committee. I do not find any force in the contention of petitioner that respondents since did not produce the order making 5 reference of dispute to the standing committee , therefore, the matter has not in fact been referred to the standing committee because of simple reason that there is no prescribed format for sending matter to the standing committee in clause 23. The clause 23 as stated above “ clearly provides that engineer incharge is required to refer the dispute to the committee. The order of the Superintendent Engineer quoted above clearly indicates that he sent the complete case with recommendation for forwarding the case to the settlement committee. How the department should act thereafter, who should forward said papers to the Standing Committee are only the matter not effecting the decision of the Superintendent Engineer. The contention of the petitioner that all communication which have been placed on record along with reply shows that respondents afte r filing of this petition by the petitioner in this court created evidence and are showing that notice was issued to the petitioner for appearing before the Standing Committee. Said condition is factually wrong in view of the letter which has been placed on record as R1/2. By this letter dated 6.2.2007 ( Annex. Respondent/1/2) the petitioner himself in terms of clause 23 of conditions submitted the claim in triplicate obviously because of reason that there are more than one members in the settlement committee. 6 Be that as it may be, in the matter of referring matter to the settlement committee under clause 23 even if there is procedure irregularity, which is not in this case, even then if the matter has been sent to Standing Committee then it cannot be declared illegal. The intention is to be seen and is not required be judged on the basis of the technicalities of law. Here in this case, I even do not find any flaw in procedure adopted by the respondents. In view of the above reason the matter is pending before the standing committee under clause 23 and, therefore, arbitrator cannot be appointed. The application for appointing arbitrator is, therefore, dismissed. (PRAKASH TATIA),J. arti