Biswanath Somadder, J. -
(1.) The instant application has been filed under section 11 (4) of the Arbitration and Conciliation Act, 1996, for appointment of an arbitrator. The records reveal that service was sought to be effected upon the respondent - M/s B.C. Enterprise, on several occasions. However, the said respondent - M/s B.C. Enterprise, remains unrepresented when the matter is taken up for consideration.
(2.) Upon perusing the records it appears that a judgment and order has been rendered earlier on 2nd August, 2019, whereby, an application filed under section 5 of the Limitation Act, 1963, seeking condonation of 193 days of delay in filing of the instant petition under section 11 (4) of the Arbitration and Conciliation Act, 1996, for appointment of an arbitrator, was allowed.
(3.) Briefly stated, the relevant facts of the case culled out from the pleadings, are as follows:-
The respondent was originally awarded a contract for 'Construction of boundary wall, security room and gate at 132/33 KV Sub-Station at Roing Sub-Station in Arunachal Pradesh under Pallatana Transmission System, NER' vide Letter of Award (LOA) No. NESH/CSM/2518/LOA/477 dated 17th June, 2010. The respondent committed default in carrying out terms of the contract and, therefore, a final default notice was issued to the respondent vide letter No. NETTEZU/RSS-01/2012-13/363 dated 17.10.2012. The Contract was finally terminated on 07.05.2014. On 12.11.2014, a new tender for execution of 'Balance work of construction of boundary wall, security room and gate at 132 KV Roing Sub-Station in Arunachal Pradesh under Pallatana Transmission System, NER' with estimated cost of Rs.40,01,586/- was floated. Having remained unsuccessful in getting a bidder, again fresh tender for balance work of construction of Boundary wall, security room and gate with the same estimated cost of Rs. 40,01,586/- was floated on 07.12.2015. Subsequently, the contract was awarded to M/s OM Traders, Lohit (Arunachal Pradesh), vide letter of Award (LOA No. NESH/CSM/EPS/2500 - 177/LOA/255 dated 19.07.2016 for Rs. 1,05,15,678/-. Accordingly, in terms of clause 54.4 of GCC, the petitioner issued notice requiring the respondent to deposit Rs. 1,05,15,678/- within 30 days from the date of notice, i.e, 28.07.2016. The petitioner on 06.10.2016, after getting approval for invoking the arbitration against the respondent towards non-payment of recovery amount issued legal notice to the respondent on 12.11.2016 under section 11 of the Act of 1996 for appointment of Arbitrator nominating an arbitrator, namely, Shri P.C. Borpujar (Retd.) Judge, District Court, Guwahati. Notice was dispatched on 17.11.2016. Receiving no response, a fresh notice under section 11 of the Act of 1996 was sent to the respondent on 06.01.2017. Respondent remained silent and thus, the petitioner approached this Court by way of filing the instant petition under section 11 (4) of the Act of 1996 on 16.11.2017. Alongwith the instant petition, an application under section 5 of the Limitation Act, 1963, seeking condonation of delay of 193 days was filed, as according to the petitioner, the three years period from the date of termination on 07.05.2014 expired on 07.05.2017, whereas the petition under section 11 (4) of the Act of 1996 had been filed on 16.11.2017, thus resulting in delay of 193 days in presenting the petition before this Court. As stated earlier, this section 5 application was allowed in terms of the judgment and order dated 2nd August, 2019, with a direction for listing of the instant petition filed under section 11 (4) of the Arbitration and Conciliation Act, 1996. ;