MOHAMMAD RAFIQ, J. - (1.) This application under Section 11 read with Section 15 of the Arbitration and Conciliation Act, 1996 (for short the Act) has been filed by the applicant, M/s. Ganesh Containers Movers Syndicate seeking appointment of independent arbitrator for adjudication of disputes between the parties in respect of agreement deed dated 28.01.2000.
(2.) Foundational facts necessary for deciding this application are that the non-applicant, Rajasthan Small Industries Corporation Limited(for short "?the Corporation "?) invited tenders for "?handling and road transportation of ISO containers and cargo between inland container depots at Jaipur, Jodhpur and Ports "?. Applicant participated in the tender process. Upon considering the tender bid of applicant, non-applicant-Corporation issued in its favour Letter of Intent dated 21.01.2000. Subsequently, an agreement deed was executed between the parties on 28.01.2000 for handling and road transportation of ISO containers and cargo between the inland container depots at Jaipur, Jodhpur and Ports. The agreement was for a period of two years starting from 10.04.2000. It was further agreed that the agreement could be extended for another two years at the sole discretion of non-applicant corporation. Eventually, term of the agreement was extended for another two years from 31.01.2003. During currency of agreement, certain disputes arose between the parties as regards imposition of transit penalty for the month of August, 2002, refusal of non-applicant to waive the penalty in terms of Clause 3.4.8 of Schedule-3(Description of Services) appended to the agreement deed; imposition of transit penalty for delay in transportation of containers exceeding gross weight of 23 metric tones between the periods from 2000 to 2002 and December, 2002 to January, 2003; non-payment of handling charges of containers for the period from October, 2003 to January, 2004; non-payment of charges for deliveries made of export bound containers even upon submission of log books/receipts issued by the port authorities; deduction of transit penalty from the bills of the applicant for delay in delivery of containers which were left behind undelivered by the erstwhile contractor of the non-applicant and non-payment of bills for transportation of containers with regard to multiple factors. Applicant requested non-applicant for appointment of arbitrator in terms of agreement of settlement of the disputes. Non-applicant appointed Shri I.C. Shrivastava, IAS(Retd.) as sole arbitrator vide letter dated 21.02.2005. The sole arbitrator, so appointed, did not function with required pace despite repeated requests of the applicant. Therefore, non-applicant-Corporation vide order dated 23.10.2009 substituted him by its Chairman and Managing Director of the non-applicant-Corporation as the sole arbitrator. It so happened that Chairman and Managing Director of the non-applicant-Corporation kept changing time and again. Applicant served on the non-applicant notice dated 13.08.2013 through its advocate requesting it to initiate arbitral proceedings within 15 days failing which the notice stated that applicant would be free to take any legal remedy. When no heed was paid to the repeated requests, the applicant approached this Court by filing present application.
(3.) Mr. Kanishka Gupta, learned counsel for the applicant, relying upon order dated 30.09.2014 passed by Co-ordinate Bench of this Court in M/s. Hanuman Tube Well Co. v. Government of Rajasthan and Others(S.B. Civil Arbitration Application No. 90/2013) argued that in that matter, this Court was approached by the applicant therein by way of filing application under Section 11 of the Act for appointment of arbitrator. However, the application was contested on behalf of the employer on the premise that award has already been passed by the Standing Committee under Clause 23 of the agreement therein. During pendency of that application, applicant received a notice dated 11.02.2014 to attend meeting of the standing committee. Applicant responded the same by letter dated 21.02.2014 that participation in meeting of the standing committee is not at all desirable in view of filing of an application for appointment of an independent arbitrator as per Section 11 of the Act. Another notice dated 02.04.2014 was received by applicant therein for appearing before the standing committee. Applicant again reiterated its stand already conveyed by communication dated 21.02.2014. Despite the fact that award had already been passed, this Court appointed arbitrator in that matter. Aforesaid judgment of this Court was challenged before the Supreme Court by filing Petition for Special Leave to Appeal (C) No. 3810/2015 which was also dismissed vide order dated 27.02.2015.;