wp10017.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 10017 OF 2010 With WP/10018/2010 NITA CONSTRUCTION THROUGH PROPRIETOR ... PETITIONER. VERSUS PRASARBHARTI (BROADCASTING CORPORATION OF INDIA THROUGH CHIEF ENGINEER, NEW DELHI AND ORS. ... RESPONDENTS. ... Advocate for Petitioner(s) : Mr.Gawali Amol K. Advocate for Respondent(s) : Mr. Sharma Alok M. Adv for R.Nos.1 to 3. ... CORAM : S.S. SHINDE, J. Dated: August 03, 2011 ... PER COURT: 1. Heard learned Counsel for the parties. 2. These writ petitions have been filed praying therein to quash and set aside the appointment of Respondent No.4 Shri K.K. Verma, who has been wp10017.10 2 appointed by respondent No.1 for conducting the Arbitration proceeding for resolving the disputes arising out of work in respect of construction of 0.25 additional dormitory for 48 girls without warden residence at JNV, Tuljapur, District Osmanabad. 3. The learned Counsel appearing for the petitioner submitted that the contract given to the petitioner came to be terminated on 20th October, 2009. He invited my attention to Sub Clause (ii) of Clause 25 of the Clauses of Contract and submitted that appointment of Arbitrator is contrary to Sub Clause (ii) of Clause 25 of the Clauses of Contract. The learned Counsel for the petitioner further invited my attention to the letter written on 12th April, 2010 to the respondent and also a communication received from the Chief Engineer. The learned Counsel for the petitioner submits that the Sub Clause (ii) of Clause 25 of the Clauses of Contract specifically refers to the Chief Engineer, CPWD. However, the appointment of the Arbitrator was made by the Chief Engineer CCW wp10017.10 3 AIR, New Delhi. Therefore, according to the Counsel for the petitioner, the appointment of the Arbitrator Mr.K.K. Verma is not in accordance with the Sub Clause (ii) of Clause 25 of the Clauses of Contract and therefore, he submits that such order may be quashed and set aside. The learned Counsel for petitioner further submits that the parties to the arbitration are residing in Maharashtra and also the contract work, which was given to the petitioner, is at Tuljapur in Maharashtra. Therefore, while appointing the Arbitrator, convenience of the parties should have been looked into by the Chief Engineer CCW AIR, New Delhi. The learned Counsel further submits that for the first time in the affidavit-in-reply, the respondents have mentioned about Condition No.14 of the General Conditions of the Contract and, therefore, the respondents cannot be allowed to raise such a point first time in the writ petition. Therefore, according to the learned Counsel for the petitioner, said Condition wp10017.10 4 NO.14 cannot be taken into consideration in the present case. 4. The learned Counsel for the petitioner further submits that from the correspondence between the parties and the facts involved in the present case, intention of the parties should be gathered while appointing an Arbitrator. In support of his contention, he placed reliance on the reported judgment of the Supreme Court in case of Visa International Limited vs. Continental Resources (USA) Limited [(2009) 2 SCC 55] and submitted that in the present case, the parties are residing in Maharashtra, the contract work given to the petitioner is also at Tuljapur in Maharashtra and, therefore, while appointing the Arbitrator, the Chief Engineer should have taken into consideration the correspondence / letters written by the petitioner. 5. The learned Counsel for the petitioner further submits that if this Court is not inclined to entertain wp10017.10 5 these writ petitions, the issue regarding venue of arbitration may be left open since it is not decided by the Arbitrator. 6. On the other hand, the learned Counsel for the respondents invited my attention to the Condition No. 14 of the General Conditions of Contract and submitted that the petitioner was aware about the said conditions since the petitioner has signed these General Conditions. The appointment of the Arbitrator is perfectly in accordance with the Sub Clause (ii) of Clause 25 of the Clauses of Contract and in the light of Condition No.14 of the General Conditions of Contract, the Chief Engineer has appointed Mr. K.K. Verma as sole arbitrator and his appointment cannot be questioned, in any manner. Therefore, he submits that there is no substance in the writ petitions ad the same may be dismissed. 7. I have given due consideration to the rival submissions of the parties. At the outset, it would be wp10017.10 6 relevant to reproduce herein below the Sub Clause (ii) of Clause 25 of the Clauses of Contract, which reads thus: "25. ........ ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the administrative head of the said CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection wp10017.10 7 by the Chief Engineer of the appeal. It is also a term of this contract that no person other than a person appointed by such Chief Engineer CPWD or the administrative head of the CPWD, as aforesaid should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all. It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer-in- charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re-enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceeding under this clause. wp10017.10 8 It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs.1,00,000/- the arbitrator shall give reasons for the award. It is also a term of the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the parties. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom wp10017.10 9 and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid." 8. From careful perusal of the Sub Clause (ii) of Clause 25 of the Clauses of Contract, it appears that Sub Clause (ii) provides that except where the decision has become final, binding and conclusive in terms of Sub Para (i) above disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work. If there be no Chief Engineer, the administrative head of the said CPWD can appoint arbitrator. 9. Condition No.14 of the General Conditions reads thus: "14. Where the word 'CPWD' refers in the printed book of 'General conditions of contract for Central P.W.D. works it may be read as 'CCW, AIR'." 10. Therefore, conjoint reading of Sub Clause (ii) of Clause 25 of the Clauses of Contract and Condition wp10017.10 10 No.14 of the General Conditions, it is abundantly clear that the Chief Engineer, CCW, AIR, New Delhi is empowered and competent to appoint the Arbitrator. It is also not in dispute that the General Conditions of the Contract are also signed by the petitioner. In that view of the matter, in my considered view, the appointment of Mr. K.K. Verma as Arbitrator by Chief Engineer, CCW, AIR, New Delhi is in consonance with the Contract and also the conditions mentioned therein. 11. Therefore, both the writ petitions, being devoid of merits, stand dismissed. Since the question in respect of venue of the arbitration is left open to be considered by the Arbitrator, this Court has nothing to say about the said aspect and it is for the parties to agitate their grievance before the Arbitrator. [ S.S. SHINDE, J ] Kadam/*