- (1.) This application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act of 1996') has been filed for appointment of an arbitrator in terms of arbitration clause 4.17 of the Concessionaire agreement dated 16-5-2012.
(2.) Clause 4.17 reads thus: 4.17.1 The Department and the Contractor shall make every effort to resolve amicably by direct negotiations and disagreement or dispute, arising between them under Contract. 4.17.2 If after 30 days from the commencement of such direct negotiations, the dispute is not resolved it shall be finally settled by binding arbitration under "The Arbitration and Conciliation Act, 1996." The Arbitrator shall be one man Arbitrator nominated by the Government of Rajasthan. 4.17.3 The Indian Arbitration and Conciliation Act, 1996, the rules made there under and any statutory modification or re-enactments thereof, shall apply to the arbitration proceedings.
(3.) The facts of the case are that the applicant company pursuant to the NIT dated 26-12-2011 submitted its bid for work relating to fixation of High Security Registration Plate (hereafter 'HSRP') on 4 wheelers and 2 wheelers both earlier registered and thereafter to be registered. As the most competitive bidder it was selected and awarded the contract reflected in its agreement dated 16-5-2012. The currency of the contract was 5 years from its execution. The applicant's case is that for completion of the work under the contract it invested large amounts in deploying the requisite infrastructure and manpower. However following the agreement dated 16-5-2012 the transport department caused obstruction in execution of the contract. It has been submitted that in fact the work of fixation of HSRP commenced after a delay of 18 months following the agreement dated 16-5-2012. That delay was also wholly attributable to the non applicant State. Further on the issue of HSRP being 200x100mm and 340x200mm on 2 wheelers objections were raised, according to the applicant the said objections were wholly misdirected and in fact vide letter dated 15-10-2012 the Central Road Research Institute (CRRI) confirmed that the HSRP proposed to be fixed by the applicant on the 2 wheelers were in order and approved. The applicant in fact was awarded requisite certificate in that regard as per Rule 50 of the Central Motor Vehicle Rules (CMVR). The misdirected objection of the Transport Department specifically made were in fact rejected. It has been further submitted that for reason of delay in the Transport Department notifying the scheme/ calendar for fixation of HSRP on vehicles registered prior to 15-7-2012 as was its objection under the agreement dated 16-5- 2012 even upto the extended contractual period ending 15-7-2017, the applicant could not avail its rights under the contract owing to which it suffered a loss of about Rs.35,64,68,706/-. The applicant submits that in the circumstances it invoked clause 4.17.1 of the agreement dated 16-5-2012 towards efforts to resolve the disputes amicably with the transport department. But on the failure of efforts at amicable settlement within 30 days of the request, the applicant thereafter required by legal notice dated 7-7-2017 the Transport Department of the State to refer the disputes between the parties qua the agreement dated 16-5-2012 to the arbitrator as per clause 4.17.2.;