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Magotech Engineering Consultants Pvt. Ltd. v/s Chief Executive Officer (URRDA)

    Arbitration Application No. 34 of 2019
    Decided On, 02 September 2022
    At, High Court of Uttarakhand
    By, THE HONOURABLE CHIEF JUSTICE MR. VIPIN SANGHI
    For the Applicant: Akshay Pradhan, learned counsel holding brief, Shashank Pandey, learned counsel. For the Respondent: S.S. Chauhan, learned counsel.


Judgment Text
1. The applicant has preferred the present Arbitration Application, under Section 11(6) of the Arbitration and Conciliation Act, 1996 (the Act), to seek appointment of a sole arbitrator for adjudicating the disputes, which have arisen between the parties.

2. The case of the applicant is that the applicant was awarded various contracts for the preparation of DPRs for 36 roads under PMGSY, PWD, namely Fultari to Fultari Dhura Motor Road, Bagicha to Sinyakhola Motor Road, Ghatbagarh to Bung Bung Motor Road, Kalika to Basora (Bajani) Motor Road, Baluwakot to Githani Motor Road, Gutthi-Malla Talla Motor Road, Kalika to Khumti Motor Road, Baluwakot To Payya Pauri Motor Road, Galati to Ramtoli Motor Road, Basbagar to Khatera Motor Road, Seraghat to Golfa Motor Road, Selapani to Bue Motor Road, Girgaon to Harkot Motor Road, Nachni- Bansbagar Kota Motor Road to Raya Wajeta Motor Road, Darati- Dhelam Motor Road to Dhami Falyari Motor Road, Bala to Namik Motor Road, Balelagaon to Khatigaon Motor Road, Munsiyari To Papri Motor Road, Madkot to Tomik Motor Road, Didihat to Jamatri Motor Road, Kwitar to Haldu Motor Road, Jaulijibi-Munsiyari Motor Road to Mawani- Dawani Motor Road, Bansbagar to Manidhami Motor Road, Girgaon to Ginni Motor Road, Bungachina to Kusail Motor Road, Bansbagar to Kota Motor Road, Pali to Bayal Motor Road, Palito Khuwakhot Motor Road, Mukut-Aatwali to Kukrauli Motor Road, Mansoorie-Kanda to Hokara Motor Road, Dewal to Kotara Motor Road, Bansbagar- Kota Motor Road to Malon Motor Road, Choti-Pangla-Jipti Motor Road to Jaykot (Jimafi) Motor Road, Pauri To Ghat Kona Motor Road, Ghatbagarh to Tankul Motor Road and Sosa-Sirkha-Sirdang Motor Road.

3. The following contract bonds were finalized by the Executive Engineer PMGSY, PWD, Dharchula, Pithoragarh (Uttarakhand) :-

“09 /AE-l dated 09.01.2014

12/AE-I dated 09.01.2014

06/AE-I dated 30.12.2013

13/AE-1 dated 09.01.2014

14/EE dated 07.02.2014

01/ dated 19.05.2012,

22/AE/”LANGUAGE”2013-2014 dated 24.01.2014

12/AE/”LANGUAGE”2013-2014 dated 21.12.2013

30/EE dated 01.03.2011

04/AE dated 24.02.2012

29/EE dated 01.03.2011

04/ dated 19.05.2012

10/AE-I dated 09.01.2014

14/AE/”LANGUAGE”2013-2014 dated 21.12.2013

05/AE dated 30.12.2013

11/AE-I dated 09.01.2014”

4. The dates, on which the contract bonds were issued, are the following :-

“First contract bond i.e. 09/AE-I was issued on 09.01.2014 in which the applicant had to prepare DPR with proposal and drawing for Fultari to Fultari Dhura Motor Road (6.000 km).

Second contract i.e. 12/AE-1 was issued on 09.01.2014 in which the applicant had to prepare DPR with proposal and drawing for Bagicha to Sinyakhola motor road (4.000 km)

Third contract i.e. 06/AE-I was issued on 30.12.2013 in which the applicant had to prepare DPR with proposal and drawing for Ghatbagarh to bung bung motor road(6.000 km.)

Fourth contract i.e. 13/AE-1was issued on 09.01.2014 in which the applicant had to prepare DPR with proposal and drawing for Kalika to Basora (Bajini) motor road (7.000 km).

Fifth contract i.e 14/EE was issued on 07/02/2013 in which the applicant had to prepare DPR with proposal and drawing for Baluwakot to Githani motor road (3.000 km), Gutthi- MallaTalla motor road(7.000 km), Kalika to Khumti motor road (13.000 km), Baluwakot to PayyaPauri motor road(14.000 km), Galati to Ramtoli motor road (8.000 kms.).

Sixth contract was issued on 19/05/2012 in which the applicant had to prepare DPR with proposal and drawing for Basbagar to Khatera motor road (16.600 km), Seraghat to Golfa motor road (14.000 km), Selapani to Bue motor road (8.900 km), Girgaon to Harkot motor road (7.500 km).

Seventh contract i.e 14/EE was issued on 07/02/2013 in which the applicant had to prepare DPR with proposal and drawing for Baluwakot to Githani motor road(3.000 km), Gutthi- MallaTalla motor road (7.000 km), Kalika to Khunti motor road (13.000 km), Baluwakot to PayyaPauri motor road(14.000 km), Galati to Ramtoli motor road (8.000 kms.)

Eighth contract i.e22/AE/[emailprotected],[emailprotected] was issued on 24/01/2014 in which the applicant had to prepare DPR with proposal and drawing for Nachni - Bansbagar Kota motor marg to Raya Wajeta motor road (6.000 kms.)

Ninth contract ie 12/AE/[emailprotected],[emailprotected] was issued on 21/12/2013 in which the applicant had to prepare DPR with proposal and drawing for Darati - Dhelam motor marg to DhamiFalyari motor road (13.000 kms.)

Tenth contract i.e 30/EE Costing was issued on 01/03/2011 in which the applicant had to prepare DPR with proposal and drawing for Bala to Namik motor road (3.000 km), Balelagaon to Khatigaon motor road (5.000 km), Munsiyari to Papri motor road(4.000km), Madkot to Tomik motor road (27.500 km), Didihat to Jamtari motor road (13.000 kms.) and Kiwtar to Haldu motor road (10.000 km).

Eleventh contract i.e 04/AE Costing was issued on 24/02/2012 in which the applicant had to prepare DPR with proposal and drawing for Jauljibi - Munsiyari motor marg to Mawani – Dawani motor marg (12.000 kms.)

Twelfth contract i.e 29 /EE was issued on 01/03/2011 in which the applicant had to prepare DPR with proposal and drawing for Bansbagar to Manidhami motor road (15.000 km), Girgaon to Ginni motor road (5.000 km), Bungachina to Kusail motor road (12.000 km), Bansbagar to Kota motor road(15.000 km), Pali to Boyal motor road (3.000 kms.), Pali to Khuwakot motor road (8 km) and Mukut – Aatwali to Kukraulli motor road (5.000 km).

Thirteenth contract i.e 04/ was issued on 19/05/2012 in which the applicant had to prepare DPR with proposal and drawing for Mansoorie - Kanda to Hookra motor road (10.000 km)

Fourteenth contract i.e 10/AE-I was issued on 09/01/2014 in which the applicant had to prepare DPR with proposal and drawing for Dewal to Kotara motor road(4.000 kms).

Fifteenth contract i.e 14/AE/[emailprotected],[emailprotected] was issued on 21/12/2013 in which the applicant had to prepare DPR with proposal and drawing for Bansbagar - Kota motor marg to Malon motor road (5.000 km).

Sixteenth contract i.e 05/AE was issued on 30/12/2013 in which the applicant had to prepare DPR with proposal and drawing for Choti - Pangla -Jipti motor marg to Jaykot Jimafi) motor road (4.000 km).

Seventeenth contract i.e 05/AE was issued on 30/12/2013 in which the applicant had to prepare DPR with proposal and drawing for Choti - Pangla -Jipti motor marg to Jaykot (Jimafi) motor road (4.000 Km). km).

Eighteenth contract i.e 11/AE-I Costing was issued on 09/01/2014 in which the applicant had to prepare DPR with proposal and drawing for Pauri to Ghat Kona motor road (4.000 km).

The other contract bonds includes the preparation of DPR's of Ghatbagarh to Tankul motor road (3.025 km) and Sosa – Sirkha - Sirdang motor road (7.000 km) along with proposal and drawing.”

5. The applicant states that the total work, under the aforesaid contracts, was of the value of Rs. 81,40,671.40/-. The applicant claims that, under the aforesaid contracts, the applicant submitted its bills, but till date full payment has not been received from the respondents.

6. The case of the applicant is that the applicant has been pursuing the matter with the respondents for clearance of the outstanding payments, but to no avail. According to the applicant, an amount of Rs. 39,07,902.40/- is still outstanding, apart from release of FDRs furnished as security amounting to Rs. 3,15,300/-. On 11.08.2018, the applicant has invoked the arbitration agreement contained in Clause 32 of the contracts entered into between the parties, which are identical. Clause 32 of the General Conditions of Contract, inter alia, provides as follows :-

“c) Except where otherwise provided in the contract, all question & disputes riflating to the meaning of the specification designs, drawing & instruction herein before mentioned & to the quality of workmanship or materials used on the work or as to any other question, claim right or rates for extra items sanctioned & decided or not by the competent authority under, the conditions, of this contract matter or thing whatsoever in any way arising out of or relating to contract, designs, drawing, specification, estimates, instructions, order on these conditions or otherwise concerning the work or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof, shall be referred to the sole arbitration of the person or persons appointed by the chief engineer, public works department UTTARAKHAND. It will be no objection to any such appointment that the arbitrator so appointed is a Govt. servant, that had to deal with the matters to which the contract relates & in the course of his duties as Govt. servant he had expressed views on all or any of the matters in dispute or dmerence. The arbitrator to whom the matter is originally or subsequently referred being in incapracited to act the chief engineer shall appoint another person to act as arbitrator in accordance with theteras of the contract, it is also a term of this contract that no person other than a person appointed by the chief engineer of the U.K. as aforesaid, shall act as arbitrator & if for any reason that is not possible, the matter is not to be referred to the time for making & publishing the award.

Subject

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as aforesain the provision of the arbitration act 1984, or any statutory modification or reenactment thereof & rules made the under & for the time being inforce shall apply to arbitration proceedings under this clause.” 7. Despite invocation of the arbitration agreement, no arbitrator has been appointed by the parties. Consequently, this Arbitration Application has been preferred. 8. Despite opportunity, no reply has been filed by the respondent. 9. Learned counsel for the respondent, on instructions, states that all the contracts contained the same General Terms and Conditions, which contains an arbitration agreement, part whereof has been extracted hereinabove. 10. In the light of the aforesaid, I am inclined to allow this application. Accordingly, I appoint Mr. Justice V.K. Bist, Retd. Chief Justice, High Court, to act as the sole Arbitrator to adjudicate all the claims/ counter-claims of the parties to the aforesaid contracts. 11. The present Arbitration Application stands disposed of in the aforesaid terms.
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