- (1.) HEARD learned counsel for the parties.
(2.) BRIEFLY, stated the facts of the case are that pursuant to the NIT for construction of 1 Type B and 1 Type D building at NRI Housing at Sector 24, Pratap Nagar, Sanganer, Jaipur the applicant company submitted its tender and being the lowest the same was accepted and acceptance letter No.137 dated 24.7.2004 was issued to it and work order No.466/2004-05 dated 24.7.2004 was issued in favour of the applicant company. Agreement bearing No.68/2004-2005 dated 30.9.2004 was also executed between the parties which contains arbitration clause 23 for referring the dispute for adjudication to the Empowered Standing Committee. As per the case of the applicant, when the non-applicants withheld payment and created disputes in the signed agreement the applicant exercising clause 23 of the agreement, on 20.6.2009 submitted its claim in prescribed format with the requisite fee and requested to non-applicant no.3 for referring the dispute to the Empowered Standing Committee. The respondents constituted the committee. On 8.10.2009 the proprietor of the applicant appeared before the committee so constituted by the non-applicants and submitted his objections (Annexure-7) with regard to constitution of the Committee as the same was not constituted as per clause 23 of the agreement. The further case of the applicant is to this effect that since the non-applicants have failed to constitute the committee as per clause 23 of the agreement, it is entitled to get the matter adjudicated by an independent arbitrator. Therefore, the applicant has filed the present application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996'). Counsel for the applicant submits that although the non-applicants have constituted the Standing Committee but the same is not as per clause 23 of the agreement, therefore, on 8.10.2009 the proprietor of the applicant raised written objections regarding constitution of the Committee. Thereafter, the Committee has not proceeded in the matter. Counsel further submits that since, the non-applicants have failed to constitute the Empowered Standing Committee as per clause 23 of the agreement, the applicant is entitled to get the matter referred to the independent arbitrator. Counsel for the non-applicants submits that for resolving the disputes between the contractors and the Rajasthan Housing Board, a Committee of five officers of the Rajasthan Housing Board has been constituted vide order dated 29.7.2009 (Annexure R/1) and constitution of the Committee is as per clause 23 of the agreement. Therefore, the application is not maintainable and the same deserves to be dismissed. Before proceeding further it would be appropriate to reproduce clause 23 of the agreement which is as follows:- "Clause 23: Standing Committee for Settlement of Disputes:- If any question, difference or objection whatsoever shall arise in any way, in connection with or arising out of this instrument, or the meaning of operation of any part thereof, or the rights, duties or liabilities of either party then, save in so far, as the decision of any such matter, as herein before provided for, and been so decided, every such matter constituting a total claim of Rs.50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated, or has been rightly terminated and as regards the rights or obligations of the parties, as the result of such termination, shall be referred for decision to the empowered Standing Committee, which would consist of the followings:- (i)Administrative Secretary concerned, (ii)Finance Secretary or his nominee, not below the rank of Deputy Secretary and/or Chief Accounts Officer. (iii)Law Secretary or his nominee, not below the rank of Joint Legal Remembrancer. (iv)Chief Engineer-cum-Addl. Secretary of the concerned Department. (v)Chief Engineer concerned (Member Secretary) The Engineer-in-charge, on receipt of application along with non-refundable prescribed fee, (the fee would be two percent of the amount in dispute, not exceeding Rs. One lac) from the Contractor, shall refer the disputes to the committee within a period of one month from the date of receipt of application." As per order dated 29.7.2009 (Annexure R/1), the non-applicants have constituted the Committee of the following officers:- 1.Chief Engineer, R.H.B., Jaipur. Chairman 2.Chief Accounts Officer, R.H.B., Jaipur Member 3.Director (Law), R.H.B., Jaipur Member 4.Additional Chief Engineer(concerned) RHB, Jaipur Member 5.Deputy Housing Commission(concerned) RHB, Jaipur Member Secretary
(3.) I have gone through the material available on the record of the case and further considered the rival submissions. There is no dispute that there exists arbitration clause 23 in the agreement and the applicant and the non-applicants are parties to the agreement. There can also be no dispute to this effect that this Court has territorial jurisdiction to entertain the present application. On going through the order dated 29th July, 2009 (Annexure R/1) it reveals that in the Standing Committee constituted by the non-applicants neither the Finance Secretary or his nominee nor Law Secretary or his nominee have been appointed as members. Therefore, constitution of the Committee by the non-applicants, in my view, is not as per clause 23 of the Agreement and as such, the dispute is required to be referred to an independent Arbitrator. ;