- (1.) THE present application has been preferred under Sub Section 6 of Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of Arbitrator for the dispute, which has arisen between the parties to the agreement for receiving of outstanding amount of Rs.24,40,000/ which this applicant has yet to receive from the respondent for the work which has already been completed by this applicant. Counsel appearing for the applicant also submitted that he has given notice, which is at Annexure7 to this arbitration application, to the respondent for appointment of Arbitrator, but, the Arbitrator has not been appointed. Counsel for the applicant submitted that dispute is in existence and there is arbitration clause in the agreement between the parties, hence the Arbitrator may be appointed and dispute may be referred to the Arbitrator.
(2.) I have heard counsel for the respondent, who has submitted that infact this applicant is facing several criminal proceedings at the behest of the Government. Moreover, certain certificate proceedings for recovery of sizeable amount has also been instituted by the State of Jharkhand against this applicant. Infact, some Government officials are also involved in the conspiracy with this applicant and sizeable amount has been misappropriated by this applicant which has been released by the Government officials in conspiracy with the applicant, under National Rural Employment Guarantee Scheme (NREGS). It is submitted by the counsel for the State that this application has been preferred just to save the skin of the applicant in criminal proceedings and in further certificate proceedings for recovery of the sizeable amount. It is further submitted by the counsel for the respondentState that this application is nothing, but, camouflage and an attempt of creating difficulties in other proceedings. Infact, never any dispute has been raised by the applicant, not a single annexure is annexed with this memo of application in which this applicant has submitted that the respondent has to make payment of Rs. 24,40,000/ nor even the notice given by the Advocate, which is at Annexure7, refers a single sentence that there is outstanding amount or the Government has to make the payment of the outstanding amount, not even a single rupee is mentioned in that aforesaid so called notice. Hence, this application deserves to be dismissed. In fact, there is no such agreement in existence and fraud vitiates everything. Even the so called contract has been cancelled much earlier in point of time i.e. in the year 2008 and several criminal proceedings have been initiated against this applicant as well as few of the government officials also and therefore, this arbitration application may not be entertained by this Court. Even the date has become time barred.
(3.) IN view of these aforesaid limited submissions made by the parties and also in the facts and circumstances of the case, I see no reason to entertain this arbitration application mainly for the following facts and reasons: (i) It appears that against the present applicant several criminal proceedings have been initiated which are as under: (a) Sisai P.S. Case No. 175 of 2008 pending at the relevant time before the court of C.J.M., Gumla. (b) Bharno P.S. Case No. 176 of 2008 pending before C.J.M., Gumla. (c) Gumla P.S. Case No. 316 of 2008. These case are filed for the offences under Sections 409, 468, 406, 420 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code. The aforesaid criminal proceedings initiated by the State Government against the so called N.G.O. which is being owned, managed and operated by Sri Devendra R. Purohit. In the aforesaid criminal complaints, there are also allegations against the Governmental Official namely, Sri Danniel Ekka, the then District Horticulture Officer, Gumla. (ii) It appears that there are also two certificate cases filed by the State against the applicant for recovery of sizeable amount under Bihar and Orissa Pubic Demand Recoveries Act, 1914. (iii) Moreover, the so called Memorandum of Understanding entered into between the parties has also been cancelled much earlier in point of time dated 22.12.2008 and no money has ever been demanded by this applicant from the respondent as outstanding dues. There is not a single annexure annexed with this memo of this application demanding money by this applicant. When this Court raised a question that whether this applicant has ever demanded the outstanding amount from the respondent, they are unable to point out any letter whatsoever written by the applicant to the respondentState demanding the money as an outstanding amount. Even in the so called notice given by the Advocate, which is at Annexure7, is also not referring the demand of money or payment of the outstanding amount. Not a single word like "rupee" or "outstanding balance amount" has been used in the so called notice of the Advocate. Thus, it appears that there is no demand at all and the whole arbitration application is nothing, but, a camouflage or defence created by the applicant to save his skin in the criminal and civil proceedings. In fact, fraud vitiates everything. Sizeable amount, as argued out by the counsel for the respondent, has been siphoned away by the applicant and that too without doing the work and therefore, perhaps, the applicant is unable to point out any letter in which the demand of outstanding amount has been raised. Thus, looking to this type of approach by this applicant it appears that the applicant is getting money without any work done by the applicant and therefore, whatever money is received the applicant is happy with that amount since long and not a single letter the applicant could point out from this memo of application in which any demand has been raised by the applicant. Thus, this arbitration application is nothing, but, camouflage, to be used in the criminal proceedings as well as in the civil proceeding which has been initiated by the State. (iv) Counsel for the State has submitted that even if there is the dues, the same is time barred debt. ;