MOHAMMAD RAFIQ,J. - (1.) This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed by M/s. Simpark Infrastructure Pvt. Ltd., a 100% subsidiary of M/s. Simplex Project Ltd. (a company incorporated under the Companies Act, 1956) having its registered office at Kolkata, praying for appointment of impartial Arbitrator including third arbitrator in terms of clause 16.3 of the agreement in accordance with law for adjudication of the disputes between the parties and / or sole arbitrator.
(2.) According to the applicant, it is pioneer in the field of developing and establishing the 'Multi-Level Automatic Car Parking' (hereinafer referred to as 'MACAP'), which it introduced in Kolkata City for the first time in the year 1997. The applicant has been consultant to the various government bodies for the projects relating to MACAP. New Delhi Municipal Corporation is one of its premier clients for the consultancy of such projects. The respondent-Jaipur Municipal Corporation intended to establish multilevel parking facility at Ram Leela Maidan and Rang Manch, Jaipur for the benefit of the general public. It, therefore, on 30.10.2009 invited Request for Proposal (RFP) for designing, construction, operation and maintenance of aforesaid MACAP in a sealed tenders from the reputed developers for the said project. The applicant having rich experience in the field submitted the bid for aforesaid project by depositing earnest money of Rs.1,95,00,000. The respondent after scrutiny of the bid-documents vide letter dated 2.2.2010 sent a Letter of Acceptance to the applicant informing that its bid has been accepted and selected and it has been decided to award the said contract to him. The applicant therefore as per clause 5.13.2 and 5.26 of RFP (Volume-I) was to pay a sum of Rs.12,75,00,000 being 25% of the total premium and Rs.10,00,00,000 towards performance security respectively to the respondent-authority within 15 days of the said letter. The applicant as per the said letter of acceptance had to acknowledge the same within 7 days where after the execution of the agreement could proceed. The agreement was executed on 17.2.2002, article 16 of which contains the arbitration clause.
(3.) Shri Pradeep Kumar Singh, learned counsel for the applicant argued that as per clause 7.1.4 of the agreement, the applicant was to develop the said project on its own cost and expenses and as such, it was required to obtain due permission, necessary approval, clearance and sanctions from the competent authorities for building plans and infrastructure of the said project. The respondent-authority was obliged under clause 4.1.2 to provide the peaceful possession of the site/land to the applicant for commencement of the project immediately. The respondent-authority miserably failed to provide the same to the applicant which resulted in delay in commencement of the project and ultimately entire project got frustrated. Despite various meetings between the representatives of the parties, the respondent failed to handover the site free from encumbrances. The respondent by letter dated 9.3.2010 with reference to the meeting dated 3.3.2010, assured the applicant to provide possession of the site and to declare the area within the 1 km radius of the site as "The No Parking Zone". The applicant waited to commence the erection of the project in view of the assurance. The respondent by letter dated 22.4.2010 without any reason and without any reference to its previous assurance sent a letter dated 22.4.2010, vaguely asking the applicant to take the possession of the site within 3 days. But the respondent failed to comply with its contractual obligations, though the applicant was always ready and wiling to perform its contractual obligations by taking the possession of the site as per the agreement. However, the respondent failed to provide the land and, therefore, the execution could not commence. The respondent also failed to ensure that there should not be any other parking within the radius of 1 km from the site. The applicant then received another vague and misconceived letter dated 13.12.2010 from the respondent. The applicant sent reply on 30.12.2010 to the respondent refuting all the allegations. The respondent, however, overlooked the reply sent by the applicant and failed to take any action. The respondent then further sent a communication cum pre-termination notice dated 17.1.2011 to applicant wherein it made reference to the earlier communication, however, overlooked the reply of the applicant dated 30.12.2010 and their failure to perform their contractual obligations.;