Manak Mohta, J. - (1.) HEARD learned counsel for the parties in respect of application filed under Section 11 read with Section 10 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996 ') for appointment of Arbitrator.
(2.) IT is submitted by the learned counsel that the applicant is partnership firm and is a fleet Owner and Transport Contractor engaged in the work of transportation under the name and style of "Suwalka Transport Company". It is further submitted that during June -July, 1994 tenders were invited by M/s. Hindustan Zinc Limited for the transportation of Zinc and lead concentrates from Zawar Mines, Udaipur to Chanderia Lead -Zinc Smelter, Chittorgarh and in accordance with that, the applicant filed in tender form on 07.10.1994, which was ultimately accepted on 15.11.1994 as the bid of applicant being the lowest, the applicant was awarded work vide work -order No. ZM/ML/PROC/94/434 dt. 04.12.1994 for the "transportation of Zinc and Lead concentrates from Zawar Mines, District Udaipur to Chanderia Lead Zinc Smelter, Chittorgarh by dumpers, by road" and an agreement was also executed in this respect between the parties having arbitration Clause 29.0 in it wherein it has been provided that in case any sort of dispute arises in respect of said agreement, the matter will be referred to Arbitrator. As per Clause 15.1 of agreement, the contract was to remain in force for a period of one year from the date of acceptance of the offer. It was further stated that immediately after receipt of aforesaid workorder, the applicant raised a protest and requested the concerned authority to amend the transit loss (which was mentioned very low) and stated that until and unless the moisture in transit loss is increased in case of Lead concentrate from 0.40 to 1% and 0.25 to 1% in case of Zinc concentrate, the contractor is not going to take up the job of transportation. Thereafter, on the verbal assurance of Senior Manager of respondent -Company that the transit loss will be increased and will be made at par with other Transporters and that the applicant would not be made to suffer. On this assurance, the applicant commenced the work of transportation through dumpers.
(3.) THE applicant carried out the assigned work of transportation of lead and zinc concentrate from 26.12.1994 to 26.02.1995 (for two months) through Dumpers and in all transported 1172.015 MT zinc concentrate and 3923.675 MT of lead concentrate from Jawar Mines, Udaipur to lead -zinc smelter plant of M/s. Hindustan Zinc located at Chanderia, Chittogarh (which is at a distance of 350 Kms from Jawar Mines, Udaipur) and ultimately submitted a bill for Rs. 8,61,187/ - towards transportation of zinc and lead concertrate, however, the payment of bill was stopped on count of shortage of goods, upon which the contractor in writing refused to continue with the transportation work stating that because of stoppage of payment, he was unable to make payments to drivers and servants, not he could get the diesel filled in the dumpers and get the vehicle repaired.;