ASHWANI KUMAR MISHRA,J. - (1.) Dakshinanchal Vidyut Vitran Nigam Limited (hereinafter referred to as 'applicant') is a Government Company, owned and controlled by the State of U.P., which is engaged in distribution of electricity in southern part of the State. It invited bids for execution of rural electrification work in different districts under the Rajiv Gandhi Gramin Vidyutikaran Yojna 10th Plan. Three separate bids were floated vide Document Nos.50 of 2005, 51 of 2005 and 52 of 2005 for cluster of different districts. The bid document contained Form-A including general conditions of contract for supply of plant and execution. Clause 38 thereof provided for settlement of dispute, difference or controversy by way of arbitration. It reads as under:- "38.If any dispute, difference or controversy shall at any time arise between the Contractor on the one hand and the D.V.V.N.L. and the Engineering of the Contract on the other hand Contract, or as the true construction, meaning and intent of any part or condition of the same or as to manner of execution or as to the quality or description of or the payment for the same, or as to the true intent, meaning, interpretation construction or effect of the clause of the contract specification or drawing or any of them or as to anything to be, done committed or suffered in pursuance of the contract or specification, or as in the mode of carrying the contract into effect or as to the breach or alleged breach or as to obviating or compensation for the commission any of such breach or as to any other matter or thing whatsoever connected with or arising out of the contract, and whether before or during the progress or after the completion of the contract such question, difference or dispute shall be referred for adjudication to the M.D., D.V.V.N.L. or any other person nominated by him on this behalf and his decision on writing shall be final binding and conclusive. This submission shall be deemed to be a submission to arbitration modification thereof. The arbitrator may from time to time with consent of the parties, enlarge the time for making and publishing the award."
(2.) Bids submitted by M/s Reliance Infrastructure Limited (formerly known as Reliance Energy Limited) were ultimately accepted. Notification of award thereafter was issued on 13th August, 2005, which also contained a clause relating to settlement of dispute. Clause 20 of notification of award reads as under:- "20.0 SETTLEMENT OF DISPUTES AND ARBITRATION 20.1 All the differences or disputes arising out of this Contract shall be settled through the process of "Settlement of Disputed" and "Arbitration" as per Clause 38A of Form 'A', Conditions of contract, Vol.-I of the Bidding Documents. The provisions of Arbitration and Reconciliation Act, 1996 as amended from time to time, shall apply. 20.2 The local Court of Agra, High Court of Allahabad and Supreme Court of Delhi alone shall have the exclusive jurisdiction in all matters arising out of this Contract."
(3.) It appears that dispute arose between the parties relating to performance of obligations under the contract. The respondent company i.e. the contractor issued notice on 31.1.2017, invoking arbitration under Clause 38 of the general terms and conditions of the contract. It alleged that various amounts are due and payable to it, and consequently, a claim for a sum of Rs.82.38 crores (principal Rs.32.39 crores + interest amounting to Rs.49.99 crores) was raised. Clauses 8 and 9 of this letter is relevant and is, therefore, reproduced hereinafter:- "8.As stated hereinabove, no decision whatsoever has been notified to R-Infra, as such in accordance with the provisions of Arbitration and Conciliation Act , 1996 (as amended, we hereby nominate and or appoint Sri R.D. Gupta (Former Director-Commercial, NTPC, Former Member-UP Electricity Regulatory Commission) as Arbitrator having his address at GA-21, Anandam NTPC Society, Pocket-P6, Greater Noida UP-201 310. 9. REQUEST You are requested to nominate/appoint a Arbitrator on your behalf within a period of thirty (30) days from the date of receipt thereof so as to enable both the Learned Arbitrators to appoint the Learned Presiding Umpire in accordance with The Arbitration and Conciliation (Amendment) Act, 2015." ;