MOHAMMAD RAFIQ,J. - (1.) This application under Section 11 of the Arbitration and Conciliation Act, 1996(for short 'the Act of 1996') has been filed by the applicant M/s. PNC-Jain Construction Company inter alia praying for appointment of an independent arbitrator for adjudication of its disputes and differences with the respondents in respect of Agreement No. IRCON/3014/RRVUNL.RS/Tender/P-way (JHL to Plant) related to "Earthwork in Formation and Permanent Way work from proposed Jhalawar Railway Station to Kalisindh Thermal Power Plant in connection with railway siding work consisting of Earthwork in formation, supply of blanketing material, ballast and P.Way material, P.Way linking, commissioning and associated work.
(2.) Facts of the case are that the non-applicants awarded tender of aforesaid work to the applicant vide letter of acceptance dated 25.02.2011 for a sum of Rs. 28,25,53,210/-. Agreement was executed between the parties on 25.04.2011 under the hands of Non-applicant No. 3 and authorised signatory of the applicant at Jhalawar. As agreed, entire work was required to be completed within eleven(11) months from the date of acceptance letter and thus, date of completion of work was 24.01.2012. The applicant claims to have deputed its representative on 02.03.2011 to take over the work site but the Engineer-in-charge of the non-applicants could not make the work site available. The applicant then sent reminders dated 07.03.2011, 20.04.2011 and 06.06.2011 to the non-applicants. The Engineer-in-charge of the non-applicants vide letter dated 07.06.2011 informed the applicant that as advised at several occasions and also as confirmed by DM/Jhalawar during last progress meeting, the entire site along the alignment lying in government and private land is available for construction work except the forest area. The applicant, however, still insisted that work site was not handed over and brought this to the notice of the non-applicant No. 3 vide letters dated 10.06.2011 and 11.06.2011. The applicant out of its own volition surveyed the entire site and communicated to the non-applicant No. 3 vide letter dated 23.09.2011 that at few places work can be commenced. Thereafter correspondences were exchanged between the applicant and the non-applicants to record progress of acquisition of work sites by the District Administration. In this regard, the applicant wrote letters dated 21.11.2011, 13.01.2012, 10.09.2012 and 18.01.2013 and non-applicants wrote letters dated 09.01.2012, 20.01.2012, 28.06.2012, 28.08.2012 and 12.09.2012.
(3.) Mr. R.P. Singh, learned Senior Counsel appearing on behalf of the applicant argued that progress of the work suffered due to reasons which have been detailed in extenso in Point No. (C) (i) to C(vii) of the present application. In view of those reasons, considerable delay occurred which was attributable to the non-applicants in not being able to provide work sites, earth and etc. on time, which resulted in huge delay in completion of contract work. As a consequence thereof, the applicant suffered huge losses on account of price escalation in terms of men and material cost, increased overheads, decrease of profit, illegal withholding of amount against executed items. The applicant vide letter dated 24.02.2013 submitted to the non-applicants an interim statement of claims(claims arising till 31.01.2013 only) in which it claimed heavy direct losses owing solely to the delay on the part of the non-applicants. As per the agreement, an attempt for mutual settlement was made. The non-applicants constituted a Committee of General Manager (Finance)-HQ IRCON, General Manager-II Jaipur and General Manager-I Jaipur, which, however, after holding few meetings reported failure under joint signatures vide letter dated 23.09.2013. The Committee opined regarding one of the interim claims for "earthwork in cutting for IRCON's earth for use in filling for embankment in alignment" that such a claim should be put forth after mutually exploring possibilities under the contractual provisions. This claim itself was for a sum of Rs. 1,83,36,031.44/-. It is argued that the applicant approached Joint General Manager, IRCON International, Jhalawar for settlement of this one claim vide its letter dated 14.10.2013. The applicant received letter dated 28.10.2013 inviting them for a meeting on 01.11.2013 to mutually settle this one claim. However, Joint General Manager, IRCON International, Jhalawar expressed his inability to release any payment on account of claim of "Earthwork in cutting for IRCON's earth for use in filling for embankment in alignment". Left with no other option, the applicant served notice dated 11.11.2013 on the non-applicant No. 1 in terms of arbitration clause (Clause 72.2 of the contract agreement) requesting for initiation of arbitration proceedings as per the agreed terms. Same notice was sent by speed post which was delivered in the office of non-applicant no.1 on 13.11.2013. As per requirement of arbitration clause, the applicant submitted its claims which had arisen as on 30.09.2013. Despite lapse of more than one month, Managing Director of the Non-applicant No. 1 did not communicate to the applicant as to whether he/she shall himself/herself act as the sole arbitrator or appoint someone else to act as the sole arbitrator or constitute an arbitral tribunal. The applicant had executed contract work beyond aforesaid period of 31.01.2013 and disputes regarding payment have continued under these very items of the submitted claim statement.;