Prem Shankar Asopa, J. - (1.) The applicant -R.B. Construction Company (in short 'the application/RBC') is a partnership firm constituted under the Indian Partnership Act is engaged in the profession and business of civil engineering construction having its office at 225, Someshwara Complex II, Near Jodhpur Char Rasta, Satellite Road, Ahmedabad. The applicant was awarded a construction contract termed as AJM/WS/01/2002 -2003 dated 3.7.2002, which was signed between the applicant and the non -applicant The Project Director, Rajasthan Urban Infrastructure Development Project (for short 'RUIDP'). The said agreement, which contained arbitration clause 21 with four sub clauses, for settlement of the dispute as well as appointment of the Arbitral Tribunal in case the dispute remains unsettled arising out of the said contract, is relevant. The present arbitration application has been filed by the applicant with regard to the dispute arising out of the final bill dated 17/19.6.2004, which according to the applicant, was accepted under protest and in respect of which the applicant has invoked the arbitration clause for claiming further amount, on 10.4.2006 (which has been referred as Annexure -2 along with the arbitration application but there is no reference of other annexures in the arbitration application although the same are annexed with the application and their reference has been made clear in the rejoinder filed by the applicant and the same has been referred as Annexure -18) by giving a notice of dispute and payment of compensation under Clause 21.1 to the Superintending Engineer, Project Implementation Unit, RUIDP, who is the designated Superintending Engineer under the said clause, for settlement of the dispute but the said designated Superintending Engineer, as per the contractual requirement, did not decide the dispute within 28 days from the date of receipt of the said notice by neither communicating the decision to the employer nor the contractor within the said prescribed time, therefore, the applicant gave a notice of its intention to commence the arbitration for settlement of the dispute under Clause 21.2 of the contract on 26.5.2006 for claiming further amount (although the notice dated 26.5.2006 has been filed along with the arbitration application, its reference has been made in the rejoinder filed by the applicant and the same has been referred as Annexure -19), to the Project Director, RUIDP, who has been designated as the employer under the contract but the non applicant under the said contract has neither taken any action for appointment of the Arbitrator nor has responded to the notice issued by the applicant. It is further stated that the efforts for amicable settlement as per Clause 21.3 of the arbitration agreement were made but of no avail. It is also stated in the arbitration application that the applicant has strictly followed the procedure prescribed under all the sub clauses of the arbitration clause 21 contained in the contract. However, the non applicant failed to fulfil its obligation under the contract to resolve the dispute or initiate arbitration, therefore, the applicant has no option but to file the present arbitration application for appointment of the Arbitral Tribunal under Sec. 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 (in short 'the Act of 1996') on 9.3.2007, for claiming the amount totalling to Rs. 1,25,05,322.83 in para 10 of the application by referring the Summary of Claims under various sub claims. The notices dated 10.4.2006 and 26.5.2006 are being referred hereunder as Annexure -18 and 19 respectively.
(2.) By way of additional affidavit, the applicant has also stated that at the time of accepting the final bill dated 17 -19.6.2004, the applicant had put "under protest" remark in presence of the Superintending Engineer but when the amount was not released, then the applicant struck off the words 'under protest' as Mr. M.N. Karoliwal, Superintending Engineer objected to the protest remarks by stating that on the final bill no such remarks were permissible. It is also stated that before accepting the final bill dated 17/19.6.2004, the petitioner firm submitted a letter on 7.6.2004 to the Superintending Engineer that it wanted to accept the payment under protest.
(3.) In the arbitration application, one application under Order 41 Rule 27 CPC read with Sec. 151 CPC for taking the certified copy of the agreement on record was also filed on 1.8.2009. A perusal of the aforesaid copy of the agreement would reveal that the same is a photo stat copy of the contract kept for official use, which has been attested by the partner of the applicant.;