At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE MUKUL MUDGAL
For the Appearing Parties: B.K. Diwan, Advocate.
MUKUL MUDGAL, J.
(1) THIS is an arbitration petition, on behalf of the petitioner, under Section II of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'act') seeking a direction to the respondents to file the original of arbitration agreement in this Court and also an order of reference of the disputes/claims enumerated in Para 17 of the petition for arbitration.
(2) THE Clause 37 of the contract agreement provided for the arbitration reads as follows:
"settlement of Dispute Arbitration -All disputes and differences of any kind whatever arising out of or in connection with the contract or the carrying out of the works (whether during the progress of the works or after their completion, and whether before or after the determination, abandonment or breach of the contract) shall be referred to and settled by the Architects who shall state their decision in writing, such decision may be in the form of a final certificate or otherwise. The decision of the Architect with respect to any of the excepted matters shall be final and without appeal as stated in Clause No. 35. But if either the employer or the contractor be dissatisfied with the decision of the Architects or any matter, question or the dispute of any kind (except any of the excepted matters) or asto the withholding by the Architects of any certificate to which the Contractor may claim to be entitled, then and in any such case either party (the employeror the contractor) may within twenty eight days after receiving notice of such decision give a written notice to the other party through the Architects requiring that such matters in dispute be arbitrated upon. Such written notice shall specify the matters which such written notice has been given and no other shall be and is hereby referred, to the arbitration and final decision of a single arbitrator being a fellow of the Indian Institute of Architects to be agreed upon and appointment of a single Arbitrator, to disagreement as of two arbitrators both being Fellow of the Indian Institute of Architects, one to be appointed by each party, which Arbitrators shall before taking upon themselves the burden of reference appoint an Umpire. The Arbitrator, the Arbitrators or the Umpire shall have power to open up, review and revise any certificate, opinion, requisition, or notice, save in regardto the excepted matters referred to in Clause No. 35 and to determine all matters in dispute which shall be submitted to him or them and of which notice shall have been as aforesaid. Upon every or any such reference the cost or and incidental to the reference an award respectively shall be in the discretion of the Arbitrator or Arbitratorsor the Umpire who may determine the amount thereof, or direct the same tobe taxed as between Attorney and client or as between party and party and shall direct by whom and to whom and in what manner the same shall beborne and paid. The submission shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, 1940 or any statutory modification thereof. The award of the Arbitrator or Arbitrators orthe Umpire shall be final and binding on parties. Such reference except as tothe withholding by the Architects of any Certificate under Clause No. 32 to which the contractor claims to be entitled shall not be opened or entered upon until after the completion or alleged completion of the works arising from any clause unless with the written consent of the employer shall not withhold the payment of the interim certificate nor the contractor except with the consent in writing of the Architects in any way delay the carrying out of the works by reason of any way delay the carrying out of the works by reason of any such matter, question or dispute being referred to arbitration but shall proceed with the work with all due diligence and shall until the decision of the arbitrator or Arbitrators or the Umpire be given abide by the decision of the architects and no award of the Arbitrator of his collations to adhere strictly to the Architects' instructions with regard to the actual carrying out of the works. The employer and the contractor hereby also agree that arbitration under this. clause shall be a condition precedent to any right of action under the contract. "
(3) THIS petition arises from construction work regarding expansion of spinning unit at Sector 3, Pithampur, Madhya Pradesh. The petitioner was awarded acontract for construction of work vide letter of intent dated 29. 4. 96. The dispute arosefrom the alleged suspension of work at the behest of the respondent and respondent's inability to make available the technical details.
(4) IT is the petitioner's case that the respondent also failed to pay the sum of Rs. 20,88,615. 00 against the work done and therefore breached the terms of the agreement Clause 8.
(5) THUS by letter dated 24. 6. 98 (Annex. 'm' at pages 59-60 of the paper book),the petitioner requested the respondent to have a joint meeting and also to make payment. In this letter the petitioner had also undertaken that the work will be completed expeditiously if the balance payment is released. However, the respondent failed to respond the said letter, leading to the present petition. Time was sought by the respondents on 15/01/1999 to file a reply. Time was also sought on 4/05/1999. Even today neither the reply is filed nor there is any appearance on behalf of the respondent.
(6) THE Architects referred to in said Clause b/of the contract (at pages 24-38 of the paper
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book) are : M/s. Pratap Parikh Associates, C-75, Malviya Nagar, Newdelhi-17 as per Clause 3 of the Articles of agreement dated 10/05/1996 (at pages21-23 of the paper book). (7) ACCORDINGLY, the petition is allowed. The respondents are hereby directed to file the original arbitration agreement in this Court within 6 weeks from today. Mr. Pratap Parikh is appointed as Arbitrator. The Arbitrator may enter upon reference within 8 weeks from today and give his award in accordance with law. There shall be no orders as to costs. (8) IN view of the above findings, the petition stands disposed of.