Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties.
(2.) By order dated 25.8.2017 this Court proposed to appoint Hon'ble Mr. Justice D.P. Singh (Retired), former Judge of this Court to act as an independent Arbitrator to adjudicate the dispute between the parties. Learned Registrar General was directed to apprise the proposed Arbitrator to submit the declaration in terms of Sections 12 of the Arbitration and Conciliation Act, 1996 as amended by the Act No. 3 of 2016.
(3.) For better appreciation order dated 25.8.2017 is reproduced here under:- "Heard learned counsel for the parties. 2. Petitioner has invoked Clause-E (ii) of the Agreement dated 09.05.2008 entered with the Respondent Jharkhand Education Project Council for appointment of an Independent Arbitrator in terms of Section 11(6) of Arbitration and Conciliation Act, 1996, as despite notice for nomination of an Arbitrator through letter dated 31.10.2015 (Annexure-P-4), Respondents have failed to act. 3. Learned counsel for the petitioner submits that as per the Agreement, nature of the work was for providing Computer Hardware, Software, Consumables, Computer Peripherals, Female Computer Instructors for running classes and training to 187 Nos. of teachers of Kasturba Gandhi Balika Vidyalaya, Jharkhand, maintenance and support for the Computer Hardware, etc. during the project period of three years including the warranty / guarantee period. Agency was selected pursuant to the tender issued on 09.02.2008 by the JEPC, as per its letter dated 15.04.2008. The project has been executed by July, 2011, but the claim of the petitioner for payment of outstanding dues to the tune of Rs. 5,32,42,381/-, as on date of the notice, is still outstanding along with interest to be charged thereupon. It is further stated that council has yet not taken a final decision on his claim, as would also be evident from letter dated 17.12.2015 (Annexure-P-3) issued by the State Project Director. As per the said letter, a committee has been formed by the Executive Committee to examine and take a decision on the claim of payment raised by the petitioner. Petitioner was required to be present before the Committee on 11.01.2016. However, no decision was taken thereupon even thereafter. 4. Respondents were called to answer the contention raised by the petitioner. Respondent No. 1 has filed a counter-affidavit. It is alleged that the petitioner has violated the terms and conditions of -2-MoU. It has not done the work up to the mark. Petitioner is working with the less qualified Female Instructors. It is liable for penalty in terms of the price schedule table. Various terms and conditions of the Agreement/MoU has also been referred to in the counter-affidavit i.e., the terms of payment, penalty for delay in installation: penalty for non-functioning during the project period; penalty for non-completion of teachers training. Petitioner has raised a claim of Rs. 5,82,24,334/- through Bills, but on obtaining report from the schools, penalty is required to be imposed upon the petitioner for the lapses in execution of the project. As per the report submitted by the schools, Bill is of Rs. 5,57,24,500/- and as per the Agreement, penalty to be imposed is Rs. 3,087,3,400/-. The rest amount is Rs. 2,48,51,100/- out of which, Rs. 50,64,901/- has been paid as an interim payment. Respondents have also questioned the educational qualification of the Computer Instructors supplied by the petitioner agency. According to the counsel for the Respondents, dispute is time barred as having been raised in the year 2015 for the first time after four years of the completion of the work. Counsel for the Respondents therefore submits that the prayer for appointment of an Independent Arbitrator is not tenable and claim is also not a live claim. 5. Considered the submissions of the counsel for the parties and perused the relevant records. While the petitioner has contended that its claim for outstanding dues is still alive in view of Annexure-P-3 dated 17.12.2015, Respondent have stated it to be time barred on the ground that the work was to be completed within three years of the Agreement by July, 2011. Prima facie, it appears that the dispute raised is an arbitrable dispute which falls within the provisions of Clause E (ii) of the Agreement. Respondent have failed to nominate an Arbitrator despite service of notice dated 31.10.2015 (Annexure-P-4). I am therefore satisfied that the petitioner has made out a case for appointment of an Independent Arbitrator in terms of Section 11(6) of Arbitration and Conciliation Act, 1996. It is open to the Respondent to raise their plea both on merits as well as on the question of limitation before the Learned Arbitrator. I therefore propose to appoint Hon'ble Mr. Justice D.P. Singh (Retired), former Judge of this Court, to act as an Independent Arbitrator to adjudicate the dispute between the parties. In terms of Section 12 of the Arbitration and Conciliation Act, 1996, as amended by the Act 3 of 2016, declaration is required to be made by the proposed Arbitrator. Learned Registrar General is directed to communicate the instant order to the proposed Arbitrator for furnishing declaration. 6. Let the matter be listed after three weeks on 15.09.2017, by which date, declaration by the proposed Arbitrator be placed on record".;