Prem Shanker Asopa, J. - (1.) THIS arbitration application under Sec. 11 of the Arbitration and Conciliation Act, 1996 (in short 'the Act of 1996') has been filed for appointment of the Arbitral Tribunal consisting of Sole Arbitrator for adjudication of all claims, disputes and differences arising out of the arbitration agreement No. EE/2/2006 -07 dt. 03.08.2006 executed between the Applicant and the Non -applicants, relating to the construction of roads under PMGSY in Baran Distt. Package No. WB -RJ -4 -58. At the outset, it is appropriate to mention that vide order dt. 02.07.2012 passed by this Court, Mr. S.K. Damani, Power of Attorney holder of the Applicant has been permitted to appear on behalf of the Applicant in this arbitration application as an exceptional case.
(2.) BRIEFLY stated, the facts of the case, as per the Applicant, are that the construction work of roads under PMGSY in Baran Distt. Package No. WB -RJ -4 -58 was awarded to the Applicant for an amount of Rs. 2,12,64,754/ - vide Agreement No. EE/29/2006 -07 dt. 03.06.2007 with the stipulated date of commencement and completion as 13.08.2006 and 12.05.2007 respectively. The work could not be progressed due to various hindrances and the performance of the work was accepted by the Non -applicants till 17.7.2008 without further extending the time from 12.05.2007 to 07.07.2008. During this period, the Non -applicants did not rescind the contract. The Chief Engineer rescinded the contract vide his office order No. 3372 dt. 17.07.2008. The competent authority i.e. the Superintending Engineer, P.W.D. Baran initiated action under Clause 44 of the Contract Agreement by imposing full 10% compensation amounting to Rs. 21,26,475/ - and at the same time, also operated Clause 53 which provided for action to charge 20% on the remaining work. It is further stated in the arbitration application that aggrieved by the order of the competent authority - Superintending Engineer, P.W.D. Baran dt. 22.08.2008 (Item No. 7 in the Index to the Arbitration Application) the Applicant sent a representation dt. 07.11.2008 through Registered A.D. post which was received on 17.11.2008 who was to convey its decision within a period of 45 days as per Clause 24 and 24.1 but no such decision was communicated, therefore, on account of failure on the part of the Non -applicants for not communicating the decision within 45 days, the Applicant was not required to file any appeal to the Empowered Standing Committee under Clause 24(2) and 24(3) of the Dispute Resolution System, as envisaged under Clause 24, therefore, the Applicant contractor can directly approach this Court under Sec. 11 of the Act of 1996. It has been also stated that the bar of arbitration under Clause 25 is not applicable as the dispute redressal system under Clause 24 has failed on account of the fault on the part of the Non -applicants by not giving the decision within 45 days or till the filing of this arbitration application i.e. 20.01.2009 by the Superintending Engineer under Clause 24.1, and Clause 25 will not apply in this case.
(3.) IN the aforesaid facts and circumstances of the case, the Applicant has filed the present arbitration application under Sec. 11 of the Act of 1996 for appointment of the Arbitral Tribunal consisting of Sole Arbitrator.;