- (1.) This arbitration petition for appointment has been listed under heading 'To Be Mentioned' under direction earlier made at instance of petitioner on submission that it could be disposed of at this stage.
(2.) Mr. Mallik, learned advocate appears on behalf of petitioner and had on earlier occasion handed up Standard Bidding Document Procurement Of Civil Works Part-I : Complete Building Document of Government of India, Ministry of Surface Transport, Department of Road Transport and Highway as containing terms of contract between parties and existing arbitration agreement. On point taken earlier that this petition was premature, today he submits, Dispute Review Expert [DRE] was to be appointed by employer per terms of bid document. He relies on the following provision in bid document : "Dispute Review Expert The Employer proposes that [name of proposed Dispute Review Expert as indicated in appendix] be appointed as Dispute Review Expert under the Contract, at a daily fee as indicated in appendix plus reimbursable expenses. If the Bidder disagrees with this proposal, the Bidder should so state in the Bid. If in the Letter of Acceptance, the Employer has not agreed on the appointment of the Dispute Review Expert, the Dispute Review Expert shall be appointed by the Council of Indian Roads Disputes at the request of either party." He submits, there was to be proposed name of DRE in the appendix. He demonstrates from the appendix, serial 16 that name of DRE, employer said, was to be intimated later on. He submits, his client's bid was accepted to become the contract, which provides for dispute resolution under clause. 24. The clause requires contractor to ask for review of a decision taken by Engineer within 14 days of notification of the Engineer's decision. He refers to his client's letter dated 15th June, 2018 by which response of concerned Engineer was sought on claims indicated by his client. In the letter his client had pointed out as follows : "It may kindly be noted that Dispute Review Expert have not been appointed in the contract neither the remuneration to be paid have been indicated in the contract. Since the work has already been completed the dispute and differences between the parties if any, as stated herein above may kindly be resolved by a reference to arbitration." He submits, by letter dated 3rd July, 2018 concerned Engineer purported to say there was no valid claim of his client and, as such, this petition for appointment of arbitrator since agreed procedure does not provide for securing the appointment. He submits further, contract value is less than Rs.50 crores.
(3.) Mr. Sen, learned senior advocate, Assistant Additional Advocate General appears on behalf of respondent. Referring to clause for appointment of DRE in bid document, he submits, employer had indicated in the appendix there would be intimation later. As such, this can only be interpreted by court as agreed appointment procedure being that when concerned Engineer takes a decision, then question for review thereof by DRE arises. By letter dated 15th June, 2018 decision of concerned Engineer was sought. Said decision was rendered by letter dated 3rd July, 2018 after which petitioner contractor did not apply for review. Hence, agreed procedure had not been complied with by petitioner. He relies on judgment dated 29th March, 2019 of Supreme Court in, inter alia, Civil Appeal 3303 of 2019 [Union of India vs. Parmar Construction Company], paragraphs 42 to 44. He demonstrates from the judgment, question for consideration before Supreme Court was, in court taking necessary measure for appointment of arbitrator, on request of a party alleging failure of agreed procedure to secure the appointment, whether there must be resort to ensure that remedies provided under the arbitration agreement are exhausted? Supreme Court said, in given circumstances, first resort is to mechanism for appointment of arbitrator as per terms of contract agreed by parties. Thus, according to him, this petition is premature and should be dismissed.;