RH BILASPUR IN THE HIGH COURT OF CHHATTISGA _ $mgig aancn ,JEJ 2004 Misc. ;€4‘wvLwvuc No: M/S SHYAM LAL AGRAWAL, Engineers & Builders, 1. "ANAND" Through its Station Partner Road, Shri Raigarh Shyamlal Agrawai, Raigarh, Distt'. Raigarh (CG) APPLICANT : § 01. —Vs- The Chairman cum Managing Director \ i RESPQNDENT§H . South Eastern Coalfields Limited, (Qiéz 02. The Seepat General Road, Manager PO: SECL, (Civil), Bilaspur (CG) 1! $ South Eastern Coalfields Limited, Seepat Road, PO: SECL, Bilaspur (CG) 03. The Chief General Manager, 5 South Gevra Eastern Area, PO: Coalfields Gevra Colliery,‘ Limited, Distt: Korba (CG) EPLICATION UNDER SECTION 11w! 6) OF THE ARBITRATION " AND CONgILIATION AQT, 1996, FOR APPOINTMENT OF SOLE H v ‘ N 3} , .. A Shn Sanjay K Agrawal and Shl apphcant Dr.N.K.Shukla with Shri Shaile respondents. The, application under Section Act, 1996 (for short ‘ the Act’) has co appointing an arbitrator, by the Hon’bie it is submitted by the petii proceedings entered into a contrao': construction of 5000 Tonnes Capacityi of Gevra Open Ca’st, C.H.P. Gevra r Rakesh Jha, learned counsel for the 1dra Shukia, iearned counsel for the 11 (6) of the Arbitration and Conciliation "ne up before me on being designated for :Chief Justice of Chhattisgarh High Court. ‘ioner/applicant that the parties to the agreement dated 02"” June 1998 for Grade Bunker for Capacity Augmentation ch was corrected by letter dated 30'” July said work was specifed to be eighteen Vil Engineering Manual 1995 any dispute arismg out of the contract agreement is to be referred to a sole arbitrator for pomted by the Chairman-cum Managing erson authorized by him, to appornt such titioner/applicant submits that the dispute e parties and the applicant, after failing to said executing authority, requested the ‘ Chairman-cum—Managing Director, res ondent No.1 to appoint a sole arbitrator to adjudicate upon the dispute within the provisions of Act, vide' letter dated However, respondent No.1 has failed to exercise the power entrusted to sole arbitrator within the notice period of Vi: 1998 and the completion period for w months As per Clause 14 (2) of the ‘ arbitration The arbitrator is to be a w . Director of the Company or any other arbitrator. Learned counsel for the p arose out of the agreement between t receive any response from the afor him and has not found time to appoint 30 days. period of thirty days in accordance with 1.10.2004 of Annexure P/14. (twat) i t XI—HC~22 \ \ W m mm WW WW mmw mw%‘wm émfi111m 16/03/2005 XI—HC—22 \V in reply to the above appi maintainability of this application on the 1) cation, non—applicant objected to the following grounds; That the agreement in qt and therefore in absence under the Act is not maintainable. That the firm 0f the appl cant is not a registered mm and as such not a legai entity and 2) the behest of unregistered partnership firm, the disputes cannot be referred to an arbitrator. On the other hand, learned cou sel for the applicant submits that the firm is a registered partnership firm and in proof of the same, a certificate of registration of partnership firm has bee med today. Learned counsel for the applica t relying upon the judgment in the matter of P rites Phos hates and Chemic Is Ltd. reported in 2002 Arb.W.L.J.619 submits that the Civil Engineering M nua of the respondent No.1 contains arbitration clause and as per Clause ‘i (2) of the same, dispute arising between hem out of an agreement, is to be resol ed through arbitration. Learned counsel for the appli ant further~relying upon the judgment reported in (2003) 6 SCC, 564 in the atter of Food Corporation of India Vs. dian Council of Arbitration and thers submits that all the contentious ided by the arbitrator under Section 16 of the Act and the legislative intent underlying the Act is to minimize the process and quick issues raised by the parties, are to be role of the courts superwsory the arbitral nomination/appointment of arbitrator, le ving all contentious issued to be decided by him. Considering all the facts and cir mstances and the contentions raised by ‘ :he respective parties, it is to be noted hat it is not one of those clear-cut cases (chatted 3am, We, W3? Wm testion does not contain arbitration clause e of the arbitration clause, this application «was n c 1E zooq mam mm WW mmm’m L‘ WWW§WW ‘azmm m XI-HC-22 EW,W§,W mm . m ‘<;C' / L/g WW ............. . ..... m 200 w .................... . ........... W ..... . ....................... WWW k 3 A mm§wm $WW as contended, in which it could be sglid that there is no contract at an between the parties, on the face of it. The ter is such that it may require probe and enquiry into the objections. raised the respondent and it is only feasibie and appropriate that the arbitrator himse f may embark upon any such enquiry in case any objection or issue is raised by the respondents before the arbitrator regarding existence of an agreeme t between the parties as well as registration ofthe iirm. As a result the application arbitrator is held to be made out. During the course of the ar uments? learned counsel for the respondent submitted that as per Clause 14 (2) of the Civil Engineering Manual, CMD of the respondent is entrusted with power to nominate arbitrator for adjudication of the dispute. However. learned counsel f r the applicant disputes this on the ground that respondent No.1 did not ex rcise the above right and his request of ' appointment of the arbitrator was n t decided within a period of one months and therefore, authorizing the CMD to a point arbitrator again is not called for. While reserving the order, a er conclusion of the arguments, l had asked learned counsel for the parties, that in case it would be found that an arbitrator is to be nominated, would it be possi le to indicate any name to which both may agree. Learned counsel for both 't e parties responded that any Hon’ble retired Judge of this High Court may be a pointed arbitrator and they do not have any objection. allowed and a case for appointment of an i l hereby, therefore, appoin Mr.Justice P.C.Naik, former Judge of High a Court of Chhattisgarh, Clo Shri .C.Naik, Advocate, 238/15, Napier Town, (assist) K m t XI-HC-22