IN THE HIGH COURT OF CHHATTISGARH BILASPUR Mlsc.iC$-w:i' W No: lg? /2004 M/s SHYAM LAL AGRAWAL, Engineers & Builders, “ANAND” Station Road, Raigarh Through its Partner Shri Shyamlal Agrawal, Raigarh, Distt: Raigarh (CG) APPLICANT -vS- RESPONDENTS : Fa The Chairman cum Managing Director 5" South Eastern Coalfields Limited, Kw) Seepat Road, Po: SECL, Bilaspur (CG) 02. ,. The General Manager (Civil), South Eastern Coalfields Limited, Seepat Road, PO: SECL, Bilaspur (CG) O3. The Chief General Manager, South Eastern Coalfields Limited, Gevra Area, Distt: Korba (CG) VJ; PPLICATION UNDER SECTION 11 {6) OF THE ARBITRATION AND CONCILIATION ACT 1996 FOR APPOINTMENT OF SOLE ’ ' ' A wwmw 3mm? W h ix P Shri Sanjay S. Agrawal, c0 sel for the petitioner. Shri Vinay Halit, Sr.Advoc e with Shri Swalukar, for the k i é respondents. Thisis an application u/s 11(6) of the Arbitxa1ion and i i Conciliation Act, 1996 (heminafte mfemd to as the Act, 1996) for appointment of Sole Arbitrat4r. The contention of learned counsel for the peiitioner is that ince the respondent has failed to I appoint an independent Sole itrator to Iesolve the disputes I in terms of the provisions of agreement, themfore, the petitioner has med this application. lt relates to the awald of Work, for iconstrucu'on of Portal Columns and other Structures, by the- Iespondent to the applicant vide Work order No.CE©/ BSP/WO/ GVRI856-63, dated 02-06-199 at a contact value of Rs.2,53,o7,830=oo. After issuance of the notice, respondents have caused their I ; ppearance. They have Eed rep i [objection with a prayer that terms and conditions of the 7g gontract contain any arbitration Eglause, therefore this matter r i i .1 l ‘ either the contract nor the gene ‘ mCcp°\\&a “Fm Ema Ea; faSéS‘t, , wéwW (Wm ~méis‘: a»? faw¥$ V WW Wax? WWW 13" fw‘? $i§1i % éiEw W 10.05.2005 [In Chamber) XE—H’G—7/8 3%: WRNEE e4“, ®~1¥WIT§ WE4 g: ? 34m W? (QgtfgEgw) E i b1» E cannot be refelred to the arbitrator. mwi am? av ‘V: mmawm“ g ' %afawm}$r It is further cohtended that Ethe applicant is wrongly trying to rely on note at the foot of the istandard general terms and conditions which stipulates that in case of any ambiguity the Civil Engineering Manual shall be gmferred to and the pmvision in the CEM shall prevail upon. He submits that the said manual has to be referred to only in case of an ambiguity in the contract itself for clarihcation of such an ambiguity and in general an arbitration clause has been deliberately obviated in full conscieus knowledge of the parties to r ‘tlm cOntract. E submits: that there is no pmviSLon in the Act for reference of disputes to arbitration by intervention of the Court in the absence f an arbihan'on agreemcnt betweeL the parties. On the other hand learned (founsel for the applicant refers f Learned counsel refers to L decision of the Apex Court i . 'reported in the matter of Tamililadu Electricim Board —Vs- l VSumathi and others reported in (2000) 4 SCC 543 and o Page 6O of the Paper Book Int which the note appended to general terms and conditions sho‘k that 1n case of any amblgggy 3a W, W W Wm ”gagag >WW (Wm It has been held by the High Court of Madhya Pradesh in case of s.G.R.D. Pro les Ltd., -Vs- MP.E.B. and another regrted in 2004 {31 MPHT $.34 that if’ prima fade the arbitration clause to resolve dispute exists between the parties then the validity, existence an applicability of the clause along- With limitau'on, jurisdiction an all contentious issues are not to be decided by the nominee, but under section 16 of the Act by the Arbitrator. This has been hel relying on decision of the Apex Com in case of Hghro Power Camration Ltd., -vs- Dethi Transco Ltd., 2003 Arb. W.L. J 469 (3C1 that the Chief Justice or his designate u/ s 1 l of the 1%ct exercises purely administrau've function and it is not open t him to discharge any judicial function of adjudicating any di pute Iegaxding the “existence of afbitration agleement". GRPRL—FS/350~12/20§)O 50,000, the Civil Engineering Manual shall he refemd to and the provisions in CEM shall prevarl upon, Clause 14 of the afolesaid manlial stipulates regarding the settlement of disputes by arbiuation.‘ ‘aa «.QIFFQ'; $9’Ci7d' 7 $J n i033. mgi ‘ . aa’g%m m,“ q: (W .gka) v I . . . WWW mi?mm ’ih WW§§$W * x x‘ x . i It has also been held by the Apax Court in the matter of EFood Comgr utlon at India -Vs- lmdian Cofdncil 0{Arbitr Hon K“ Em others regrted in (20031 s scc 564 that Vthe legislau've \g' lmtent underlymg the Act is to mtm'mize the supervisory role of the courts, m arbittal process and quick nomination] ’ V'ap‘poin‘tment of arbiu'ator, leaving all contentious issues to be _ ldécided by him. _ il l Ifwe examine the present ase in the light of the above 'i ,i'decisions rendered by the Apex Co t as well as the High Court of I, adhya Pradesh 1t appears that it; 1s not a case of this nature 1n E hich 1t can be said straight xivay that no proceedings for [ppomtment could be drawn as theixe appears to be no arbitrah‘on ement between the parties. Ini the opinion of this Court the atter 1s such that 1t needs proper adJudlcation by the arbitrator etition relation 13 allowed to the ex1stence and the of case arb f0 Ljatlon reference clause. to In the the Arbitrator result the 1s eld to be made out E I hereby appoint Hon’ble EMr Justice PVC Naik former 4 ~ udge of High Court of Chhattis art, resident MhJJSVNapie-rwm ‘1'} . igf m ah €‘ EV’I w? m 1%a‘w aw Wm m3? §&$¥%$(§%§ay) ~E E E Town, Jabalpur (MP) as the Sole i g conferred u/ s 11(6) of the Arbittat The Arbitrator will settle his the remuneration. The Registry is directed to ' timate Ho‘n’ble Mr. Justice P.C. Naik (Retd) about his appointmen as Arbitrator and send all the papers furnishing the address of The parties are also dim ' ed to approach Hon’ble. Mr. 1 E Jusu'ce P.C.Naik (Retd.) at Jabalp paljt in the proceedings. -g, §lRao/ WW WzW ‘EWW e parties. Sd/- ‘ sunn Kumar Sinhwa \ Judge eanmmmjikmnnwmn€ Arbitrator in exercise of powers ion and Conciliah'on Act 1996. terms and conditions including ‘and submit papers and take