1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Misc. Civil Application No. 712/2009 (Arbitration) M/s. Rana Construction Co. Partnership Firm thr. Partner Amarjeet Singh Bawa ..vs.. Hasnate Taheriyah Fidayyaih (Trust) thr. Mr. Zohair Fidvi -------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------------- Mr. Quazi, Advocate for applicant. Mr. Chhabra, Advocate for non applicant. CORAM:- S. A. BOBDE, J. DATED:- JUNE 18, 2010 1. This is an application by M/s Rana Construction Company for appointment of Arbitrator in respect of the disputes arising out of a Building Contract dated 04.09.2000 between the non applicant Hasnate Taheriyah Fidayyiah Trust, Nagpur and the applicant. The arbitration clause in the agreement reads as follows: “9. All disputes and differences of any kind whatsoever arising out of or in connection with contract or the carrying out of works shall be referred to and settled by the Architect. But if either the owner or the contractor be 2 dissatisfied with the decision of the Architect on any matter question of disputes of any kind, in such case either owner or contractor may within twenty eight days after receiving notice of such decision, give a written notice to the other party, through the Architect, requiring that such matters in disputes be arbitrated upon. The arbitrator should be a fellow of Indian Institute of Architects, to be agreed upon by both parties or in case of disagreement three arbitrators, all being fellows of Indian Institute of Architect, one to be appointed by each party and third appointed by architect. The award of arbitrator or arbitrators shall be final and binding on both the parties.” 2. Mr. Chhabra, the learned counsel for the non applicant, relied upon clause 7 of the agreement and submitted that the arbitration clause covers only disputes that may arise in respect of the phase-I of the work and not phase- II and III in relation to which the dispute has arisen. Clause 7 of the agreement reads as follows: “7. The rates mutually agreed in the bill of quantities are valid till completion of work which is six months. In 3 the event of any extension of time being required by the contractor to complete the work with regard to extra or additional work, necessary permission should be sought from the Architect as & when required. The owner shall have the right to impose a penalty of maximum Rs. 12,500/- per week. However due to delay in work because of late receipt of drawings or delay due to owner’s hindrance the penalty shall be waived. The contractor shall give in writing for such delay within 2 days of such instances. The date of commencement of work shall be 10-09-2000 and the stipulated completion date of first phase shall be 10/03/2001 with a grace period of 10 days in addition.” 3. It is not possible to accept the contention on behalf of non applicant since the last sentence of clause (7) merely stipulates the date of commencement of the work and the date of completion of the first phase. This does not mean 4 that there is no contract to phase I and II and the arbitration clause therein does not cover those phases. Indeed, it was fairly accepted by Mr. Chhabra that there is no separate contract entered into in respect of phase II and III. The arbitration clause clearly covers all disputes of any kind “arising out of or in connection with contract”. Assuming for a moment that the contention on behalf of the non applicant is tenable, it has no substance since phase II and III are admittedly connected with phase I. 4. Mr. A.M. Quazi, learned counsel for the applicant, further pointed out that in the reply to the notice dated 14.02.2007, the non applicant had stated as follows: “With this Notice you are therefore, called upon by my client to forthwith withdraw/cancel the Award dated 14/01/2007 passed in favour of M/s Rana Construction Co. and also intimate about the same to my client and M/s Rana Construction Co. and direct them to get their dispute if any to be resolved in the civil court or through an arbitration as they may deem fit.” 5 The learned counsel, therefore, submitted that even the non applicant intended to have the present dispute settled by arbitration. 5. In this view of the matter, I hold that the dispute is covered by the arbitration clause. I accordingly consider it appropriate to direct that Mr. S. S. Rao, Chief Engineer, shall be appointed as Arbitrator. No reason is pointed out on behalf of the applicant why the said Arbitrator should not be appointed. Order accordingly. JUDGE kahale