Manak Mohta, J. - (1.) HEARD learned Counsel for the parties in respect of application filed under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator.
(2.) IT is submitted by learned Counsel for the applicant that the applicant is a Society registered under the Societies Registration Act and a workcontract was awarded to the applicant -firm for 'Operation & Maintenance of Main Pump House No. 1 to 4 of Jaisamand Water Supply Project, Udaipur ', for that, a written agreement (Annex.1) was executed between the parties on 31.01.1999 having Arbitration Clause 23 in it wherein it has been provided that in case any sort of dispute arises in respect of aforesaid contract or execution of work related to the said agreement, the matter will be resolved through arbitral proceedings. As per the original agreement, the work was to start from 31.01.1999 and was to be completed by 30.01.2000 but the same was extended and the applicant discharged its contractual obligation till 24.03.2001. It is submitted that in case time is extended, the increase in cost will be considered. It is also submitted by the learned Counsel for the applicant that as per Schedule -G appended with the contract agreement if the work contract continues after completion of extended period of one year, the contract rates were to be increased by 10% and on completion on extended period of 2 years, the same were to be increased by 21%. It is further urged that under the said contract -in -question the applicant started the work on 31.01.1999 and continued and completed the same till 24.03.2001 and thereafter raised his running bill and final bill but for the reasons best known to the respondents, the legitimate dues of applicant were not paid despite exchange of series of correspondence between the parties, thus a dispute arose between the parties, as such, the applicant sent a registered notice dt. 29.05.2002 (Annex.2) under Section 80 C.P.C., upon which, the Department constituted a Pre -Litigation Committee, which in its meeting held on 26.05.2005 found that the applicant -contractor was entitled to receive the amount claimed, the Committee also recommended appropriate proceeding against the erring officials, however, when nothing was done, then the applicant vide his letters requested the concerned, to comply with the decision taken by the Committee, however, no heed was paid to the applicant, therefore, the applicant was compelled to sent a legal notice dt. 19.09.2006 (Annex.3) for referring the matter to arbitrator as per the provisions of arbitration agreement and offered to deposit the requisite money on demand. Vide said notice, the applicant made a demand of Rs. 7,88,188/ - including interest @ 14% uptill 28.02.2002, but despite passage of reasonable time, the Department has not referred the matter to arbitrator for redressal of the applicant 's grievance, hence, this application has been moved before this Court to appoint an independent arbitrator as per the provisions of the Act.
(3.) A reply to the arbitration application was submitted on behalf of respondents and during argument submissions were made. It is contended that at no point of time the Department had ever agreed to pay the enhanced rate. On the contrary, the Department sought consent of the applicant with clear stipulation that the extension could be considered on the existing rates as is in force on 31.01.2000, to which, the applicant gave his consent vide letter dt. 06.07.2000 and now the applicant cannot be permitted to take somersault. A further stand was taken that the Department cannot grant increased rates beyond the approved rates without prior approval of Finance Committee and the Finance Committee has accorded approval for extension of work to the applicant upto 31.01.2001. Thus, it is submitted that there is no referable dispute to be referred to the arbitrator. It is further contended that neither there is any contract to make the payment at the enhanced rate nor there is any legitimate right of the applicant to raise demand, as such, no claim of the applicant can be said to be alive or can be said to be legitimately due to be referred to arbitrator. It is further submitted that the applicant failed to submit or raise his grievance within the stipulated period of 30 days after the presentation of final bill and in the absence of the same, the subsequent grievance raised is of no avail. It is submitted that the applicant also filed writ petition but that was dismissed. Thus, a prayer is made to dismiss the application.;