- (1.) A work order was granted in favour of the applicant on 15.05.2013 for construction of Industrial Training Institute building at Makrana. The proposed construction was opposed by the local residents and therefore, the same was ultimately abandoned. However, as per the applicant, prior to that, a huge investment had been made to collect raw material and other ancillary equipments. The applicant being suffered huge losses submitted a representation to satisfy the loss caused. On being failed to get any positive response, a request was made by him to refer the dispute for its adjudication to the standing committee as per clause 23 of the general conditions of contract. The respondents did not refer the dispute to the standing committee, thus, this application as per the provisions of Section 11 (6) of the Arbitration and Conciliation Act, 1996 was filed on 09.12.2013.
(2.) AFTER filing of this application, the respondents referred the dispute to the standing committee. The submission of learned counsel for the applicant is that after expiry of the period of 30 days from the date of giving notice for making reference of the dispute for arbitral proceedings, the respondents forfeited their right to make a reference, as such, the subsequent reference made is of no consequence. To substantiate the contention, reliance is placed by learned counsel for the applicant upon an order of this court passed in M/s Mahendra Singh & Co Vs. State of Rajasthan & Anr., reported in 2014 (1) RLW 514 (Raj) holding therein as under : - "Hon'ble Supreme Court in Deep Trading Co. (M/s.) Vs. M/s. Indian Oil Corporation, reported in 2013 DNJ (SC) 378, held that if appointment of arbitrator is made during pendency of the proceedings under Section 11(6) of the Act of 1996, then such reference is of no consequence and that does not disentitle a party to seek appointment of the arbitrator by the Chief Justice as per Section 11(6). In the case in hand it is not in dispute that the reference was made to the standing committee during pendency of the proceedings as per Section 11(6) of the Act of 1996. The fact about filing of the application for appointment of an independent arbitrator by the applicant before this Court was also in knowledge of the respondents. The respondents in spite of it choose to refer the matter to the standing committee. It is also pertinent to note that no averment about making such reference and passing of award by the standing committee on 23.11.2010 was made by the respondents in reply to the application, which was filed on 3.2.2011. Looking to the factual position mentioned above and also the law settled by Hon'ble Apex Court in M/s Deep Trading Co. (supra), I am of the view that the reference made by the respondents in no manner disentitles the applicant from getting an independent arbitrator appointed in accordance with Section 11(6) of the Act of 1996. The applicant is right in saying that the reference made was lacking competence."
(3.) IN the instant matter too, notice for making reference of the dispute was given on 25.10.2013 and till lapse of a period of 30 days, the matter was not referred for its adjudication to the standing committee. The reference was made only after filing of the instant application. As such, the law laid down in the case of M/s Mahendra Singh & Co (supra) is having absolute application in the instant matter. The respondents, as a matter of fact, forfeited their right for referring the dispute to the settlement committee after expiry of a period of 30 days from 25.10.2013, the day on which notice was served upon the respondent for making reference. In view of whatever stated above, this application deserves acceptance. Accordingly, the same is allowed. Mr. D.K.S. Rai, Chief Engineer, C.A.D., Irrigation, Kota, resident of 11/977, Chopasani Housing Board, Jodhpur, is appointed as sole Arbitrator to adjudicate the dispute between the parties as referred in the notice dated 25.10.2013. The Arbitrator appointed shall be entitled for fee, remuneration and other perquisites in accordance with the Alternative Dispute Resolution 2009 prescribed by the Rajasthan High Court. The Registry is directed to remit a copy of this order to the Arbitrator forthwith at the address given.;