Manak Mohta, J. - (1.) Heard learned counsel for the parties in respect of application filed under Sec. 11 of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator.
(2.) It is submitted by the learned counsel for the applicant that the applicant is a registered partnership firm engaged in the work of contractor-ship. The applicant was awarded work vide work-order No. Acctt./6673 dt. 15.01.2005 of "Re-sectioning (Bed-cutting) and preparing of Bank as per design of GDC from RD 54.00 to 60.00" vide Agreement No. 72/2004-05 having arbitration Clause-23 in it, in which, it has been provided that in case any sort of dispute arise in respect of said agreement, the matter will be referred to arbitrator. It is further slated that as per the work-order, the work was to commence from 25.01.2005 and was to be completed by 24.05.2005. The applicant completed the contract-work to the satisfaction of Department on 14.04.2005 but despite completion of work, the payment of final bills to the tune of Rs.2,00,000/- (including the amount of security deposit of Rs. 1,31,000/-) was not paid without any rhyme or reason, on which, letters dt. 10.06.2006, 18.03.2006 and 27.02.2006 (Annex.1) were sent. After that notice dt. 11.08.2006 (Annex.2) was sent to the Executive Engineer, G.F.C., Division, Suratgarh. Therefore, a legal notice dt. 26.06.2007 (Annex.3) in terms of arbitration Clause was also given to the Executive Engineer, GFC Division, Suratgarh along with cheque No. 435023 dt. 26.06.2007 for a sum of Rs.4000/- (amount of settlement fee @ 2% of the amount in "dispute") for referring the dispute to arbitrator as per Clause 23 of the Agreement but to no avail. Thereafter the present application has been filed in this respect and lastly it was prayed that the application may be allowed and the matter be referred to Arbitrator.
(3.) Learned Dy. Government Advocate opposed the application and reiterated the submissions made in reply. It was contended the applicant had commenced the work on 27.01.2005 but it did not complete the work in time. The payment had been made to the applicant for the work done by him on the basis of first to fifth running bills and thereafter vide notice, the applicant was asked to complete the work and was also informed that if he will not complete the work, the same will be got done by other contractor at his risk and cost, despite that, the applicant neither re-started the work nor completed the same. It was submitted that so far as the amount of security is concerned, the same is deposited in the name of applicant-firm in SD register and if the applicant will complete the work, he will be paid the payment of final bill as well as security amount and since the applicant had not completed the work, he was not entitled to get the payment of final bills and the security money. Further it was submitted that the applicant moved notice for referring the matter for arbitration along with cheque of Rs.4000/-, but the cheque was missed, therefore, he was informed but since the applicant had not submitted another cheque, therefore, the matter could not be referred to Standing Committee. Lastly, it was submitted that if the applicant submits fresh application along with requisite cheque of the due amount, then his matter will be considered for referring to the Standing Committee and it was prayed that the application may kindly be dismissed.;