M.Y.EQBAL, J. - (1.) IN this Request Petition under Sec.11(6) of the Arbitration and Conciliation Act, 1996 (in short 'the Act '), the petitioner has prayed for appointment of Arbitrator and for reference of the dispute to the Arbitrator for adjudication and for giving an award.
(2.) PETITIONER 'scase is that he is engaged in contract work amongst others in the respondents -Bharat Coking Coal Ltd. (in short BCCL). Under the orders of the competent authority of the respondents and in order to meet the urgent need of the company the petitioner agreed to complete the work in terms of the specification provided to him. The Engineer so deputed, recommended the works completed by the petitioner stage by stage and prepared bills which were duly verified by the Executive Engineer but in spite of submission of the bills the petitioner has not been paid the amount for the work done by him. When the respondents did not take any step, the petitioner gave legal notice on 23.10.2001. The petitioner, thereafter, approached this Court by filing a writ petition being WPC No. 5856/2002 which was eventually withdrawn by him in order to avail the alternative remedy. The petitioner, thereafter, sent notice dated 24.10.2003 for referring the dispute to the Arbitrator in terms of Clause 9 of the general terms and conditions of the contract. In the counter affidavit filed by the respondents -BCCL it is stated that the application under Sec.11(6) of the Act is not maintainable as no agreement has ever been entered into between the petitioner and the respondents. It is stated that work orders were issued in respect of the works mentioned in serial Nos. 1 to 4 whereas no work order was issued in respect of the work at serial Nos. 5 and 6. The respondents further stated that no formal agreement has ever been executed between the petitioner and the respondents for the reason that the value of the work was less than five lacs. According to Clause 4,08.2 of the Civil Engineering Manual an agreement is executed on non -judicial stamp paper only when the contract value is Rs. 5 lacs or more.
(3.) MR . A.K. Sahani, learned counsel appearing on behalf of the petitioner submitted that earlier the petitioner moved this Court by filing a writ petition but the same was withdrawn in order to avail the remedy provided in the agreement. According to the learned counsel the question with regard to existence of the arbitration clause is to be determined only by the Arbitrator. Learned counsel relied upon a decision of the Supreme Court in the case of Hythro Power Corporation Limited V/s. Delhi Transco. Ltd., 2003 (4) JLJR 21 (SC).;