- (1.) The present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act') seeking appointment of an arbitrator in respect of the alleged disputes having arisen between the parties as regards the contract work awarded to the applicant for the upgradation & rehabilitation work on Darda Turki to Bagri Road and Nathari Peeplu Ranoli Jaisinghpura Road. During the course of the arguments, the learned government counsel Dr. A.S. Kharigarot raising the preliminary objection against the maintainability of the application under Section 11 of the said Act, had submitted that Clause 23 (wrongly printed as Clause 21) of the agreement in question could not be said to be an arbitration agreement within the meaning of Section 7 of the said Act, and, therefore, the present application seeking appointment of the arbitrator under Section 11 of the said Act itself is not maintainable. Since the said clause is the standard clause normally contained in all the government contracts and since similar issue has been raised in many other petitions pending before this court, the court had called upon all the concerned learned counsel to address the court on the interpretation of Clause 23 of the said agreement, in the light of the various decisions of the Apex Court. The question raised by the learned counsel for the non-applicants being pure question of law, the court had permitted all the interested advocates to address the court on the said question.
(2.) The short facts of this case are that the applicant was awarded the work order being No. Ar. TonkII/2011-12/D-4306 dated 29.07.2011 in respect of the aforestated work for the estimated cost up to Rs. 1,10,61,819 for which the agreement No. 64/2011-12 was executed. The copy of the work order is at Annexure 1. The original agreement No. 64/2011-12, along with the procedure and application for settlement of disputes by Standing Committee, was produced by the learned counsel for the respondents during the course of arguments, which has been taken on record. It appears that some disputes having arisen between the parties in respect of the said agreement, the applicant invoking the Clause 23 of the said agreement submitted an application in the prescribed form RPWA 90 along with the demand draft dated 09.10.2012 for Rs. 30,000, which was received by the respondent No. 2 on 10.10.2012. According to the applicant, despite receipt of the said application, the respondents did not take any step for referring the case for adjudication to the Empowered Standing Committee pursuant to the Clause 23 of the agreement within the stipulated period, and, therefore, the application under Section 11 of the said Act for appointment of the arbitrator has been filed.
(3.) The respondents have resisted the present application by filing the reply contending inter alia that the present application, filed without availing the remedy under the agreement, was not maintainable. It has also been contended that the application of the applicant seeking settlement through the Empowered Standing Committee was also under process, and, therefore, also the present application seeking appointment of arbitrator under Section 11 was not maintainable.;