M.Y.EQBAL,J. - (1.) IN this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner has prayed for appointment of Arbitral Tribunal in terms of Clause 95 of the General terms and conditions of the agreement.
(2.) THE petitioner's case is that pursuant to the tender notice issued by the General Manager (Transport), Central Coalfields Limited dated 28/29.4.2003 for loading and transportation of coal from KDH OC Quarry bed stock of N.K. Area to Feeder Breaker, the petitioner submitted his tender which was accepted by the respondent -CCL and a Letter of Intent was issued vide letter dated 31.5.2003/3rd June, 2003. The work was started at KDH Project N.K. Area with effect from 9th June, 2003. The petitioner commenced the work and the Project Officer vide Officer letter dated 16.7.2003 informed about the approval of 80% provisional payment and subsequently payments were made. It is stated that the works were completed. However, the quantum of work offered against the various items was highly disproportionate. Again in July, 2003, the quantum offered against Item No. 1B was disproportionate. In August, 2003, a meeting was held on 18.8.2003 under the Chairmanship of C.M.D., Central Coalfields Limited and the representatives of Coal Transportation Agencies including the petitioner wherein it was agreed in the meeting that CISC (petitioner) has to do transport from KDH surface miner faces to KDH siding, route distance 2 -3 kms. Further case of the petitioner is that it deployed 26 HYVA vehicles (10 wheelers) equivalent to 46 numbers of 6 wheelers coal tippers at the KDH project. Due to failure of KDH project to expose coal and to extract coal by surface miners, coal tippers of the petitioner remained grossly underutilized causing huge loss. The petitioner's further case is that respondent did not come forward to execute the agreement till December, 2003 for a period of six months and as such, the payment of the bills got delayed frequently and 20% of the payable amount has been withheld by the respondent. Because of the quantum of work offered to the petitioner against various items was highly disproportionate, the petitioner suffered enormous loss. Moreover, payments of bills have frequently been delayed and about 20% of the payable amount has been withheld by CCL to coerce the petitioner to execute the agreement for a period of three years at wide variance to the terms and stipulation of N.I.T. payment of bills. Because of illegal and unjustified payment, the petitioner invoked Clause 95 of the general terms and condition of contract and raised a claim before the Director and requested him to settle and decide the dispute within 30 days. In spite of claim preferred by the petitioner, the competent authority failed to meet the terms of the contract and no Arbitral Tribunal has been appointed to decide the claim. The petitioner, therefore, filed the instant application purported to be under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short 'the Act'). The respondents filed their counter affidavit wherein the maintainability of the application under Section 11(6) of the Act has been vehemently challenged. The respondent's case is that the contract in question was for a period of one year with provision to rebate on rate applicable for second and third year. The petitioner became successful tenderer in quoting the rate for three years and so the work was awarded for three years. The respondent's further case is that information was conveyed vide letter dated 17.6.2003 for sanction of release of 80% provisional payment to the petitioner till execution of the agreement for transportation of coal. The petitioner did not turn up for the agreement. As such, again in December, 2003 the respondent -Company informed the petitioner to turn up for agreement failing which payment may be stopped. The respondent's further case is that the work was started from June 2003 for a period of three years. The payment was released limited to 80% of the rate pending finalisation of agreement till November, 2003 and thereafter payment was stopped from December, 2003. The petitioner again did not turn up for the agreement and stopped the work in February, 2004. It is a specific case of the respondent that there is no agreement between the petitioner and the respondent containing arbitration clause and as such this application is not maintainable.
(3.) I have heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents.;