- (1.) INSTANT application has been filed u/S 10 and 11 of Arbitration and Conciliation Act,1996 (Act,1996) for appointment of arbitrator. The applicant was awarded work contract to construct 48 lower subordinate quarter of police department at police line Bhilwara and agreement to that effect was executed between the parties bearing no.209/2009 -2010 dt.23.02.2010 and in the agreement there was clause -23 of the conditions of contract that if there is any question, difference or objection arises from the terms of the agreement executed between the parties, the matter could be referred for final decision to the empowered standing committee and the Engineer -in -Charge on receipt of application along with non -refundable prescribed fee from the contractor shall refer the dispute to the committee within a period of one month from date of receipt of application. Clause -23 of the agreement being relevant for the present purpose is being reproduced ad infra : "Clause -23: Standing Committee for Settlement of disputes : If any question, difference or objection, whatsoever shall arise in any way, in connection with of arising out of this instrument of the meaning of operation of any part thereof, of the right, duties or liabilities of either part then, save in so far, as the decision of any such matter, as here in before provided 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 following : - (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 -Additional Secretary of the concerned department (v) Chief Engineer concerned (Member -Secretary)
(2.) 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. Procedure and application for referring cases for settlement by the standing committee shall be as given in form RPWA90. " It is not in dispute that there was an arbitral dispute between the parties for which notice was sent by the applicant dt.09.07.2012 (Annx.3) to the Executive Engineer, PWD Division, Bhilwara which indisputably was received in the office of respondent on 11.07.2012 but since the respondent failed to refer the matter to the empowered standing committee in terms of clause -23 of the agreement, after expiry of thirty days, the present arbitration application came to be filed on 07.09.2012 and there is no material on record that even upto the date of filing of instant arbitration application in this Court on 07.09.2012 the matter was referred by the Engineer -in -Charge to the empowered standing committee in terms of Clause -23 of the contract agreement. Counsel for applicant submits that once the respondent failed to refer the matter to the empowered standing committee within the statutory period even upto the date of filing of present arbitration application he is entitled to seek indulgence of this Court regarding appointment of the arbitrator u/S 11(6) of the Act,1996.
(3.) AFTER notices of the present application came to be served, reply was filed by the respondents and it has been admitted that the notice dt.09.07.2012 was received in the office of Engineer -in -Charge on 11.07.2012 and that was sent to the Superintending Engineer vide letter dt.20.07.2012(Annx.RAA/2) but as it reveals from the record that the Superintending Engineer has sent a notice dt.06.11.2012 calling upon the applicant to appear before the empowered standing committee for settlement of the dispute in terms of clause -23 of the contract on 19.11.2012 much after filing of the present arbitration application. Counsel for the respondent submits that after the matter has now been referred to the empowered standing committee in terms of clause -23 of the agreement wherein the applicant has now participated in the proceedings, the present application deserves to be dismissed as having become infructuous and while opposing applicant, in counter, submits that after notice came to be served dt.06.11.2012 the applicant appeared before the empowered standing committee and raised preliminary objection that the empowered standing committee is not holding any competence to now examine arbitral dispute under clause -23 of the agreement.;