- (1.) In this application under Section 11(6) of the Arbitration & Conciliation Act, the petitioner has prayed for appointment of an independent arbitrator and for reference of the dispute arose between the parties to the said arbitrator for adjudication.
(2.) The petitioner was awarded the work of construction of JRD Tata Technical Training Institute at Gopalpur. District Ganjam, Orissa vide work order dated 10.12.1996. The contract work was valued at Rs.4.48 crores, but as per the drawings issued the total contract work on accepted rates was about Rs. six crores. The petitioner's case is that in course of work, the scope of work was revised drastically and as such the petitioner raised claim of Rs.96.35 lakhs, but the claim of the petitioner was not settled. It is contended that the respondents have made part payment and in spite of notice, failed to pay the entire amount. The petitioner, thereafter, sent notice dated 15.11.2002 to the respondent demanding Rs.197.11 lakhs along with 18% interest. Thereafter, the petitioner sent another notice dated 17.12.2002 invoking the arbitration clause. It is alleged that the respondent failed to agree with the single arbitrator nominated by the petitioner and consequently the present application was filed.
(3.) The respondent - Tata Iron & Steel Co. Ltd. filed counter affidavit stating that the petitioners have resorted to arbitration clause No. (14.2) without first resorting to clause 14.1 which is condition precedent before resprting to the arbitration clause. The respondent's further case is that one M.N. Dastur & co. Ltd. was a Consulting Engineer of the said Project. The petitioner had written a letter on 8.3.2001 to the said Consulting Engineer including the final bill for the said work. The Consulting Engineer passed the bill after statutory and other deductions. The petitioner, however, did not submit 'No Claim Certificate' despite repeated reminders. However, the petitioner approached the respondent and everything was settled. The respondent's further case is that as a matter of fact, by letter dated 20th October, 2001, the petitioner gave 'No Claim Certificate' stating that the petitioner does not have any further claim.;