- (1.) THIS arbitration application has been filed by the Applicant for appointment of the Arbitrator in respect of Job No.008/RJ/89-079 in respect of which an agreement was executed containing arbitration Clause 23. When the Non Applicant issued notice on 19.5.1999 u/s 6, Public Demand Recovery Act,1952 raising the demand of Rs.15,56,790/-, the Applicant filed S.B. Civil Writ Petition No.1023/2000 M/s.Kulhari Construction Company V. The State of Rajasthan and others before this Court which was disposed of on 10.3.2008 with liberty to the Applicant to move an appropriate application before the competent authority for reference and appointment of the Arbitrator under the provisions of the Arbitration and Conciliation Act, 1996 (in short 'the Act') within a period of one month and the interim stay order passed by this Court on 31.3.2000 in the said writ petition was ordered to remain in force only for a period of one month from that day. Subsequently, the Applicant is said to have given notice on 7.4.2008 demanding arbitration along with the requisite fee.
(2.) COUNSEL for the Non-applicants submits that the Applicant has failed to serve notice along with the prescribed fee for seeking appointment of Arbitrator as per arbitration Clause 23, therefore, his submission is that the arbitral procedure has not been followed and the Applicant is not entitled to appointment of the Arbitrator. At this stage, counsel for the Applicant submits that the Applicant is prepared to give another notice along with the prescribed fee. I have gone through record of the arbitration application and further considered rival submission of counsel for the parties. Before proceeding further, it would be appropriate to quote the relevant portion of the judgment dated 10.3.2008 of this Court, between the same parties, in SB Civil Writ Petition No.1023/2000, which is as follows: "Both the parties have contended that there an an arbitration clause in the contract and the petitioner should have approached the competent authority by filing an application for appointment of the arbitrator in the case in respect of present dispute, which is a subject matter of this writ petition. I have considered the submissions of the learned counsel for the parties and after considering the same as well as arbitration clause, which has been quoted by both the parties in their respective pleadings, I think it fit and proper to direct the petitioner to move an application under the provisions of Arbitration and Conciliation Act, 1996 to refer and appoint the arbitrator in the case. Consequently, the writ petition is disposed of with a liberty to the petitioner to move an appropriate application before the competent authority for reference and appointment of the arbitrator under the provisions of Arbitration and Conciliation Act, 1996 within a period of one month. The interim stay order passed by this Court on 31.03.2000 shall remain in force only for a period of one month from today." In my view, the arbitral procedure has not been followed, therefore, no order of direct appointment of the Arbitrator or referring the matter to the Empowered Standing Committee can be passed. However, I give opportunity to the counsel for the Applicant to follow the arbitral procedure by giving notice along with the prescribed fee and in case the notice along with the prescribed fee is received by the Non applicant, it is expected of the Non Applicant to refer the matter to the Empowered Standing Committee as per Clause 23. The arbitration application is disposed of as indicated above. ;