- (1.) LEAVE is granted to place on record replications of respondents No. 1 and 2 respectively and the applications are allowed. Arbitration Case No. 168 of 2013 (O and M) The petitioner was a successful tenderer qua supply, installation, commissioning and project management of outdoor surveillance system for Gurgaon and Faridabad on turn -key basis which resulted in an agreement executed inter -se the parties on 20.05.2011. The Agreement contains an Arbitration Clause which reads as under: - 6.28 Arbitration (i) In the event of any dispute or difference arising between the Successful Bidder and tenderer out of or in connection with the Contract or RFP or any of the terms and conditions contained therein or as to the interpretation or any other matter, both the parties shall resolve such dispute or difference first by mutual discussions. If any dispute or difference still persists, it shall be referred to Home Secretary, Govt. Haryana, for Arbitration to be conducted in accordance with Arbitration and Conciliation Act, 1996. The arbitration will be held in Chandigarh and the proceedings shall be conducted in English. The parties to the dispute will instruct the Arbitrator(s) to render a decision within 30 days of the date of their appointment and such a decision shall be binding on both the parties. ii) This RFP and the Contract shall, in all respects, be governed by and construed in all respects in accordance with laws of the Republic of India. iii) In relation to any legal action or proceedings to enforce the contract, the parties to the contract irrevocably submit to the exclusive jurisdiction of the Courts in Chandigarh to the exclusion of any other Court or Courts that may otherwise have had such jurisdiction and waive any objection to such proceedings on grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
(2.) THE agreement in question is stated to have been terminated in exercise of the powers conferred under Clause 6.25 of the contract, relevant portion of which is extracted as under: - 6.25 Termination of the Contract: - (i) In the event of the bidder failing duly and properly to fulfill the contract or committing breach of any of the terms and conditions of this contract or repeatedly supplying goods liable to rejection hereunder or failing, declining, neglecting or delay to comply with any demand or requisition or otherwise, not executing the same in accordance with terms of this contract or not achieving the milestones mentioned at Clause No. 6.4 or if the bidder of his agent or servants being guilty of fraud in respect of this contract or any of his partners or representatives found directing, giving, promising or offering any bribes, gratuity, gift loan, perquisite, reward or advantage pecuniary or otherwise to any person in the employment of Government in any way relating to such officers or person or persons, officer or employment or if the bidder or any of his partners become insolvent or apply for relief as insolvent debtor or commence any insolvency proceedings or make any composition with his/their creditors or attempts to do so, then without prejudice to tenderer rights and remedies otherwise, tenderer shall be entitled to terminate this contract forthwith and may claim back all or part of the money already paid to the bidder.
(3.) THE petitioner approached this Court by filing Application being Arbitration Case No. 75 of 2013 for appointment of an Arbitrator. This application was, however, dismissed on 23.08.2013 on account of the fact that the petitioner had not approached the named Arbitrator under Arbitration Clause 6.28 to enter upon the reference and adjudicate the disputes inter -se the parties and thus there was no refusal or negligence on the part of the Arbitrator to act in that capacity. It is, thereafter, that the petitioner approached the named Arbitrator being Home Secretary, Government of Haryana, vide letter dated 10.09.2013 (Annexure A -11) to proceed with the arbitration. There was, however, no response to this letter and as a consequence thereof, the present application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act') on 06.11.2013, after having failed to elicit any response for almost two months. Notice of this application was issued on 21.02.2014.;