Shiv Kumar Sharma, J. - (1.) IN this application under Section 11 of Arbitration and Conciliation Act, 1996 (for short 1996 Act ) the applicant company seeks to appoint independent arbitral Tribunal for resolving the disputes between the applicant and respondent.
(2.) AS per the facts stated in the application the applicant entered into an agreement with the respondent to perform excavation of mines on the assigned place for which mining rights were existing with the respondent. It is pleaded that due to the non -cooperation of the respondent the applicant was restrained from carrying out its work and it had to file a civil suit. Looking to the time gap the applicant had given a request letter on 02.06.2005 to respondent to appoint a Committee Arbitrator but the respondent declined the request vide letter dt. 28.06.2005. The respondent in the reply raised preliminary objections in regard to maintainability of the application. It is averred in the reply that since there was no arbitration agreement between the parties, the application was not maintainable. It further averred that the petitioner itself could refer the dispute to Empowered Standing Committee along with a non -refundable fee of 2% of the amount in dispute for covering expenses etc. in view of Clause 39 of the agreement. It is also stated that the Committee was not required to act as an arbitrator as per Clauses 39 and 40 and the remedy in the Civil Court was not barred to either party. The applicant filed Civil Miscellaneous Appeal against the respondent in the Court of Additional District Judge No. 4 Jaipur City and while issuing order dt. 23.10.2002 it was held that Civil Court had jurisdiction. The said order has been made subject matter of challenge by the respondent and the High Court in SBCWP No. 3691/2003 stayed it. According to respondent, the instant application has been filed by the applicant to circumvent the stay order passed by this Court. The applicant filed rejoinder to the reply.
(3.) I have heard rival submissions. Before proceeding further, I deem it appropriate to have a look at Clauses 39 and 40 of the agreement dt. 25.04.1995. Clause 39 provides as under: If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as herein before provided for and been so decided, every such matter consisting a total claim of Rs. 50,000/ - or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated shall be referred for decision to the empowered standing committee which would consist of the following: (i) Executive Director, RSMDC (ii) Finance Advisor, RSMDC (iii) Advisor (Law) RSMDC (iv) Chief Mining Engineer, RSMDC (v) Project Manager (Contract) Member, Secretary, For this purpose the contractor shall refer the dispute to the Committee along with a non -refundable fee of 2% of the amount in dispute, for covering expenses etc. of the Committee. Clause 40 reads as under: 40. If either party wants to raise any dispute whatsoever in connection with or arising out of this contract and wish to seek his remedy in the Civil Court, when it is mutually agreed by the parties that Jaipur Courts alone shall have exclusive jurisdiction to hear, determine and adjudicate all such disputes, actions and proceedings arising out of the contract.;