- (1.) RAJESH Tandon Heard Sri Gourav Joshi and Sunil Kumar Jain, Advocates for the petitioner and Standing Counsel for the respond ent no. 3 and Sri S. N. Babulkar, Sr. Ad vocate, assisted by Sri Anil Bisht, Ad vocate for the respondent nos. 1 and 2.
(2.) BY the present writ petition, the petitioner has prayed for a writ of mandamus commanding the respondents no. 1 and 2 to make the final payment to the petitioner due to them or to ap point any arbitrator under Section 89 of the Code of Civil Procedure for settle ment of dispute between the petitioner and respondents no. 1 and 2. Briefly stated, the petitioner is the sole proprietor of M/s Ramola Construc tion Company. The tenders were invited by the respondent no. 1 for the work i. e. Construction of Double Sotrey Parking at Muni-Ki-Reti, District Tehri Garhwal. The respondent no. 1 gave information to the petitioner about the acceptance of his tender and execution of agree ment through letter. In pursuance of the said letter, agreement was executed on 12-03-2004 between the parties and the same was signed by the petitioner as well as by the respondent no. 1. According to the petitioner, the estimated cost was Rs. 43. 82 lacs and earnest money was Rs. 87,650. 00. The cost of the tender form was only Rs. 2500. 00. The time for completion of work was three months. According to the petitioner, he started the work in the right earnest and completed the work in time. However, on 05-05-2004, the respondent no. 1 in formed the petitioner to stop the work and further on 24-08-2004, vide letter issued by the President, Nagar Panchayat, Muni-Ki-Reti, the petitioner immediately started the work again and completed the same. After completion of the work, he has submitted the bill but the payment has not been made.
(3.) A perusal of the agreement shows that there is no clause with regard to the appointment of an arbitrator. Since, there is no clause in the agree ment, therefore, resort is taken under Section 89 of the Code of Civil Proce dure as held in the case of Salem Ad vocate Bar Association Vs. Union of India (2003) 1 SCC 49 to the following effect : "9. It is quite obvious that the rea son why Section 89 has been inserted is to try and seek that all the cases which are filed in court need no nec essarily be decided by the court itself. Keeping in mind the law's delays and the limited number of Judges which are available, it has now become im perative that resort should be had to alternative dispute resolution mecha nism with a view to bring to an end litigation between the parties at an early date. The alternative dispute resolution (ADR) mechanism as con templated by Section 89 is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. Sub-section (2) of Section 89 refers to different Acts in relation to arbitration, conciliation or settlement through Lok Adalat, but with regard to mediation Section 89 (2) (d) provides that the parties shall follow the procedure as may be prescribed. Section 89 (2) (d), there fore, contemplates appropriate rules being framed with regard to media tion. 11. Section 89 is a new provision and even though arbitration or concilia tion has been in place as a mode for settling the disputes, this has not re ally reduced the burden on the courts. It does appear to us that modalities have to be formulated for the manner in which have been in troduced by way of amendments, may have to be in operation. All counsel are agreed that for this pur pose, it will be appropriate if a com mittee is constituted so as to ensure that the amendments made become effective and result in quicker dispen sation of justice. " In view of the above, the matter is referred to retired Judge Hon'ble Mr. Justice O. P. Garg, E-48, Sector 39 Noida for deciding the dispute, who shall submit the report by 15th of August, 2006.;