- (1.) This arbitration application has been preferred under Section 11(6) (c) of the Arbitration & Conciliation Act, 1996 mainly relying upon Section XI of the agreement (Annexure 2 to the memo of this arbitration application), which is an Arbitration Clause and upon the fact that Notice for appointment of Arbitrator was also given on 4th August, 2014 (Annexure 5 to the memo of this Arbitration application) and inspite of the said Notice the respondent authority is yet to appoint an arbitrator.
(2.) Counsel for the applicant submitted that the applicant, who is an Architect was appointed by the respondents and payment has not been made for the work done and therefore, Arbitration Clause No. XI incorporated in the agreement dated 26th May, 2005 entered into between the parties to this litigation (Annexure 2 to the memo of this arbitration clause) is invoked for the appointment of an Arbitrator and the applicant has no objection if any retired Hon'ble Judge of the Hon'ble Supreme Court is made an Arbitrator. It is further submitted that the amount claimed by this applicant runs into few crores.
(3.) Counsel for the respondent submitted that the Arbitration clause, which is referred to by the applicant is a non est clause as it refers to the Arbitration Act of the year 1940, viz. as the Arbitration Clause refers to Arbitration Act of 1940, the Arbitration Clause has no value in the eye of law. In this context the counsel for the respondent has relied upon a decision rendered by Hon'ble the Patna High Court in Rajan Kumar Verma and another v. Sachchidanand Singh reported in AIR 2006 Patna 1 and has submitted that such arbitration clause which refers to Arbitration Act of 1940 can not be made operative. Thus, there is no arbitration clause in existence at all in the present case and hence, this application is not tenable at law. Counsel for the respondent has also submitted that a First Information Report has been lodged against this appellant on 16th February, 2016, which is annexed with the second supplementary counter affidavit filed in this Arbitration Application. There are several allegations against this applicant. In this context, counsel for the respondent has also relied upon the decision rendered by the Hon'ble Supreme Court in N. RADHAKRISHNAN versus MAESTRO ENGINEERS AND OTHERS reported in 2010(1) SCC 72. It is further submitted by the counsel for the respondent that agreement entered into by the parties was never proved by the syndicate of the respondent University and hence said agreement is also a non est agreement and therefore, the arbitration clause in question is not tenable at law. Moreover, the agreement dated 26th May, 2005 has also been cancelled by the respondent University and the resolution in question has also been referred to by the respondent and therefore, in view of the fact that neither the agreement nor the arbitration clause is in existence, this arbitration application may not be entertained by this court. In these contexts counsel for the respondent has also relied upon the decision rendered by this court in Brahmanand Farms and Research Centre Versus The State of Jharkhand reported in (2014)2 JCR 201 (Jhar). Further, it has also been pointed out by the counsel for the respondent that without any work done by this applicant, a sizable amount to the tune of Rs.76, 61,000/- (approximately) has already been paid. Moreover, this applicant has also raised a bill of Approximately Rs. 4 crores.;