SHIVALIK FOODS Vs. UNION OF INDIA
HIGH COURT OF JAMMU AND KASHMIR
UNION OF INDIA
Click here to view full judgement.
(1.) THE petitioner is proprietorship concern registered as A -Class contractor with respondents. The respondents invited tenders for supply
of frozen meat dressed at Chandigarh for Ladakh Sector for the period
commencing from June 9, 2003 upto 31.3.2006. The petitioner submitted its
tender which was accepted and a Contract Agreement No. CD -60 of 2003 -04
came to be executed between the parties. Under the agreement the
petitioner was to make supply of a specified quantity of meat per year on
daily basis. Accordingly the petitioner started making supplies.
(2.) DURING the currency of the contract, however, the respondents demand for supply of meat could not be met by the petitioner to its
entirety. The respondents, therefore, made good the shortfall by
purchasing the same from the market at the risk and responsibility of the
petitioner. For the excess money spent by the respondents for purchasing
the shortfall recovery was levied upon the petitioner. On the question of
said recovery the petitioner disputed his liability. Therefore, disputes
arose between the parties. The petitioner on December 6, 2003 issued a
notice to the Commanding Officer asking for the appointment of an
arbitrator to settle the disputes. The Commanding Officer Shri Major
Rajan Kadyan 2IC responded vide its letter dated 10th December 2003 which
was received by the petitioner on 15.12.2003 by saying the office and
staff of Contracting Operating Officer is, however, helpful in smooth
functioning of contract within the framework of Contract deed. In case of
any more problem you are requested to discuss the same with the
authorities for immediate result instead of wasting precious time in
writing letters. The Commanding Officer also forwarded the notice of the
petitioner dated 6.12.2003 to his Headquarters Northern Command as well
as HQ 14 Corps for information and necessary action.
(3.) FROM the response of the Commanding Officer it is manifest that he did not accede to the request of the petitioner for the appointment of
an arbitrator. It may be pointed out here that admittedly the agreement
has been executed by and Major General MG ASC Northern Command Executive
Officer for and on behalf of President of India. The Commanding Officer
to whom the petitioner had served the notice was the Contract Operating
Officer appointed in terms of Clause 6(a) of the Agreement. When the
Contract Operating Officer i.e. Commanding Officer by his letter dated
10th December 2003 declined the request of the petitioner for appointment of an arbitrator, the petitioner filed the present application under
section 11 of Jammu and Kashmir Arbitration and Conciliation Act,
1997(for short the Act) for seeking appointment of the arbitrator. On 11 December 2003 the application of the petitioner was registered and
respondents were put on notice. The respondents have filed their
objections for contesting the application of the petitioner.
During the pendency of this case the respondents filed CMP No.2 of 2005 on 15.3.2005 and therein pleaded as follows: -
"That the respondents most respectfully submit that respondents have decided to refer the matter to the Arbitrator as per terms and conditions of the Contract Agreement as the contract has become unworkable. Since the applicant/contractor has prayed in its arbitration application that the subject matter be referred to an arbitrator as per terms and conditions of the contract agreement, the arbitration application titled above as such( has become infructuous) and liable to be dismissed."
Copyright © Regent Computronics Pvt.Ltd.