- (1.) HEARD learned counsel for the parties.
(2.) THIS is an arbitration application filed by the applicant for appointment of Arbitrator with respect to the disputes arising out the rate contract agreement dated 2.8.2008 (Annexure A/1) entered between the applicant and the non-applicants which contains clause no.7 for deciding the disputes by the Chief Engineer (H.Q.) PHED, Rajasthan, Jaipur. Counsel for the applicant submits that the dispute is with regard to the payment of supply of the material, damages and loss of profit etc. The applicant gave a notice under Section 80 CPC on 20.9.2010 and on 19.1.2011 sent a legal notice for invoking arbitration clause which was received by the non-applicants. Despite expiry of 30 days, the matter was not referred to the Chief Engineer (H.Q.) PHED, Rajasthan, Jaipur and the same was also not referred till the date of filing of the present application on 8th March, 2011. Therefore, now the right of the non-applicants to refer the matter of the Chief Engineer (H.Q.) PHED, Rajasthan, Jaipur has been forfeited and the applicant is entitled for appointment of independent arbitrator. Mr. Agarwal, learned Senior Advocate submits that otherwise also the Chief Engineer (HQ) PHED Rajasthan, Jaipur is disqualified on account of denial of the claim of the applicant vide reply dated 21.8.2011 (Annexure A/5). Counsel for the non-applicants has not denied the aforesaid factual aspects of the case and further he has denied the claim of the applicant on merits. There is no dispute that the applicant is a party to the agreement containing the arbitration clause and this Court has territorial jurisdiction to entertain the present application. I have gone through the material available on the record of the case and further considered the rival submissions.
(3.) HAVING considered the submissions of the parties, this Court is of the view that since the Chief Engineer (HQ) PHED Rajasthan, Jaipur has not decided the dispute and has simply denied the same, therefore, he is disqualified. Otherwise also, the right of the non-applicants to refer the matter to the Chief Engineer (HQ) PHED Rajasthan, Jaipur is forfeited on account of the fact that the matter has not been referred to the named arbitrator till the date of filing of the present arbitration application i.e. 8.3.2011, therefore, I deem it proper to appoint independent Arbitrator to resolve the dispute between the parties. In view of the above, I deem it proper to appoint Mr. Pravesh Kumar Bhatia, Retired District & Sessions Judge, Resident of B-20A, Shiv Marg, Bani Park, Jaipur as an arbitrator to decide the matter. Fees and other terms and conditions of arbitration shall be settled by the Arbitrator as per the Arbitration Manual. The non-applicants will have right to raise objections regarding claim of the applicant before the Arbitrator. A copy of this order be sent to the Arbitrator.;