Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties.
(2.) Upon hearing learned counsel for the parties and on consideration of their respective stand, by order dated 11.10.2018 this Court proposed to appoint Hon'ble Mr. Justice Permod Kohli(Retired) Former Judge of this Court as an arbitrator to adjudicate the dispute between the parties. For better appreciation, order dated 11.10.2018 is quoted hereunder:- "Heard learned counsel for the parties. 2. This application has been preferred under Section 11(6)(c) of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') for appointment of an independent Arbitrator to adjudicate the dispute arising out of Agreement No. 1 F 2 of 2005-06 entered into between the parties for construction of Bhairwa Reservoir Scheme (Residual Work) in Hazaribagh District (now Ramgarh District) on turnkey basis. 3. On 6th July, 2018 upon hearing counsel for the petitioner and State, the following order was passed: "Learned counsel for the petitioner, Mr. Indrajit Sinha submits that in terms of Clause 23 of the agreement dated 2.07.2005(Annexure-1) for construction of Bhairwa Reservoir Scheme (Residual Work) in Hazaribag District (now Ramgarh District) on turn key basis ( Agreement No. 1 F2/2005-2006) entered into between the petitioner and the Executive Engineer, Water Ways Division, Hazaribagh, a dispute was raised through letter dated 21st June, 2017 (Annexure-26 of supplementary affidavit). On their failure to respond, a request was made to Chief Engineer, Water Resources Department through letter dated 17th August, 2017 (Annexure21) for appointment of Arbitrator in terms of Clause 23 of the Contract for adjudication, details of the disputes and differences are furnished thereunder. Respondents have failed to respond thereto which has compelled the petitioner to approach this Court under Section 11(6) (C) of Arbitration and Conciliation Act, 1996 for appointment of Arbitrator. Learned counsel for the petitioner has also sought to draw attention of certain minutes contained in Annexure-22 Series enclosed to the supplementary affidavit of the meeting held on 27th April, 2015 and lastly on 1st December, 2016 on the subject under the Chairmanship of the authorities of respondent. Learned counsel for the State prays for and is allowed 4 weeks' time to seek instruction and file counter affidavit in the matter. List it accordingly." 4. Learned counsel for the Respondent-State has filed counter affidavit thereafter opposing the prayer on two counts: (i) Clause 23 in the F 2 agreement has already been deleted vide Gazette Notification dated 18th November, 1992 bearing no. 6113 during the period of Bihar. The same has been adopted on bifurcation of Parent State by State of Jharkhand. Clause 9 of the instant agreement provides that in case of contradiction between provisions of F2 system of contract and those provided in the tender document, provision of F2 system of contract shall prevail. Clause-23 is nonest in the eye of law, therefore, petitioner cannot take its shelter for the purposes of arbitration and (ii) reference is made to various Clauses under NIT such as Clauses 15F, 15G, 24, 26, 28, 29, 30 and 31. Reference is also made to Clause under General Condition of Contract such as Clauses 26.5, 26.6 and 26.7. Respondents also have made reference to Special Condition of Contract i.e., Clauses 9, 14 etc. According to them, under different components of project such as Earthen Dam, Spill channel, Dam outlets (LMC & RCM), Left main canal, Right main canal and its different structures e.g., bridges, escape etc., petitioner initiated work of different components of the scheme specially dam, spillway, spill channel and both dam outlets till May, 2008. He had received payment amounting to Rs. 44,41,17,130.00 approximately and about 80% work of dam (without river closure). Water could not be stored in the reservoir. River closure has been done in the year 2016. Till June 2016 the total payment on account of 37 bills have been received as Rs. 44,96,190,22.00, details whereof are incorporated therein. Based on this, it is stated that initially petitioner took care of the progress of work since October, 2005 till May 2008 and admissible dues were paid to him. There was no payment due against the work done by the Agency. Petitioner removed all men and machineries from the work site and abandoned the work. Notices were issued repeatedly upon the Agency whereupon it initiated the work for completion of dam, so that the irrigation potential of the river may be achieved. Payments were done against such work in 2016. However, petitioner did not start any work in other components of the scheme, as a result work of about 10.77 Crore has been left to be executed by the petitioner. Details of unexecuted work have also been mentioned at Para-11. According to the respondents, all required land of the scheme has been acquired prior to the agreement. Reference is made to the report dated 26th March, 2018 of Special Land Acquisition Officer, Tenughat Project, Hazaribag which indicates that new land has also been acquired. Respondents contended that thereafter petitioner has started making correspondences raising various grounds and submitted a claim of Rs. 11,76,78,981 vide letter dated 7th April, 2011 for which petitioner has filed the instant application for appointment of an Arbitrator. It is the experience of the department that this petitioner has taken shelter of arbitration to deviate the non-performance of work of other schemes also under the State. Certain instances of such agreement under Ramrekha Reservoir Scheme, Garhi Reservoir Scheme and Keso reservoir Scheme under different districts of Jharkhand have been cited. Petitioner was also debarred from taking part in any construction work under the State of Jharkhand due to non-completion of work and negligence in completion of Bhairwa Reservoir Scheme. It is also the case of the respondents that the office of Principal Accountant General (Audit) Bihar has found excess payment to the tune of Rs. 15.06 Crore vide letter dated 7th July, 2017. Further excess payment have also been noticed in respect of execution of work under Kesho Reservoir Scheme. An F.I.R has been lodged against the petitioner by the Executive Engineer, Water Ways Division, Barhi bearing ACB, P.S. Case No. 04/18 dated 1st February, 2018. Petitioner was evading the notice of final measurement under the agreement in question despite letter dated 1st September, 2017. Lastly, it has been submitted that the petitioner was taking shelter of arbitration in respect of not only this agreement but two other agreements to divert the attention from his prima facie proved misdeeds and fraudulent payment received from the public exchequer. Therefore, the plea of appointment of Arbitrator is strongly opposed. 5. Rejoinder has been filed by the petitioner thereto. 6. Learned counsel for the petitioner submits that the interpretation of the respondent regarding existence of the Arbitration Clause is incorrect and misconceived. The said Arbitration Clause has not been deleted. The instant agreement has been entered as per standard bidding document which contains the Arbitration Clause 23. Arbitration Clause has not been struck off while entering into conscious agreement by the Executive Engineer on behalf of the State Government with the petitioner. He submits that in similar circumstances, this Court in the case of Lakeshwari Builders Pvt. Ltd. -vs. State of Jharkhand and others, 2006 4 JLJR 148 (HC) has upheld the existence of the Arbitration Clause No. 23 in F2 contract despite the Gazette Notification dated 18t November, 1992. The ratio rendered therein applies clearly to the case of the petitioner. The stand of the respondents have been rejoined. Learned counsel for the petitioner submits that as per the stand of the respondents, petitioner had completed substantial portion of the work till May, 2008 in spite of several hindrance on account of breach of the fundamental terms and conditions of the agreement. Correspondences enclosed to the application and supplementary affidavit would show that construction of coffer dam was not taken into account at the time of preparation of DPR by the respondents though the river itself is perennial and also had to intake water from Sikidri Hydel Project. As such, the river closure was not possible without coffer dam. During the period, the work was stopped. Finally, after six years revised approval was informed vide letter dated 3rd January, 2014. Further, there was escalation in incidences of violence and since June, 2008, the local villagers continuously disrupted the work on account of non-payment of compensation in view of acquisitions of their lands. They prevented the petitioner from entering their land for execution the work which gave rise to law and order problem. Respondents did not take any action to control them. During that period the work was stopped though the petitioner maintained its infrastructure, men and machinery at the site with the hope that the situation would improve. Respondents have not cooperated which has resulted in loss and damages to the petitioner. Petitioner has denied removal of men and machinery from the site and abandoned the work at the site. It has always been ready and willing to complete the work. Petitioner had submitted its claim on 7th April, 2011 and again on 21st June, 2017 (Annexures 21 and 26 of the supplementary affidavit). In respect of contention of the respondents that other projects awarded to the petitioner have also remained languishing, it has been answered that the dispute arising in other projects are clearly attributable to the respondents and are subject matter of different cases. Respondents had in a malafide manner debarred the petitioner from participating in future tenders which had been challenged in W.P.(C) No. 5230 of 2017. Learned counsel for the petitioner submits that writ petition was allowed in the last week and the order of debarment has been quashed. Learned counsel for the petitioner submits that both the contentions of the respondents to oppose appointment of Arbitrator is untenable in law and on facts. There exists Arbitration Clause and arbitral dispute between the parties, merits of which can only be adjudicated once the matter is referred to an independent Arbitrator. Therefore, prayer of the petitioner deserves to be allowed. 7. I have considered the submission of learned counsel for the parties and taken note of the relevant materials facts pleaded above. Agreement No. 1 F 2 of 2005-06 was entered into between the petitioner and Executive Engineer, Water Ways Division, Hazaribagh for construction of Bhairwa Reservoir Scheme (Residual Work) in Hazaribagh District (now Ramgarh District). It contains Clause 23 which reads as under: " Clause 23: In case any dispute or difference shall arise between the parties or either of them upon any question relating to the meaning of the specifications, designs, drawings and instructions here before mentioned or as to the quality of workmanship or materials used on the work or as to the construction of any the conditions or any clause or things there in contained or as to any question, claim rights of parties or any matter, or things whatsoever in any way arising out of or relating to the contract designs, drawings specification, estimates, instruction order or these conditions or otherwise concerning the work or the execution, or failure to execute the same whether arising during the progress of the work or after the competition or abandonment thereof or as to the breach of this contract then either party shall forthwith give to the other notice of such dispute or difference in writing and such dispute or difference shall be referred to the Engineer-in-Charge. The E/1 will take decision within 30 days. Even if the matter is not resolved it will be referred to Chief Engineer/Engineer in Chief where it will be resolved in 45 days. If the party is not satisfied with the decision the matter may be referred for arbitration on which request at per rule under "The Arbitration and Reconciliation Act 1996". No work under the contract shall unless otherwise directed by the Engineer-inCharge discontinue during the arbitration proceedings." 8. Respondents denied existence of the Arbitration Clause on the plea that by Gazette Notification dated 18th November, 1992, the same was deleted. 9. In the present case, it is not disputed that Clause 23 was not struck off at the time agreement was executed. It exists on the face of the agreement. In the case of Lakeshwari Builders Pvt. Ltd. -vs. State of Jharkhand and others , a similar objection was taken by the State on the existence of the Arbitration Clause No. 23 in the contract of similar nature. Learned Single Judge of this Court referred to at length the contention of the parties and upheld the existence of the Arbitration Clause 23 for the following reasons: " 17. The contention of the respondent-Department is that Clause 23 of F-2 Contract was abolished vide Resolution dated 18.11.1992 and it was published in the gazette. A copy of the gazette notification has been annexed as Annexure-A to the counter affidavit. It transpires from the said notification dated 18.11.1992 that the Government of Bihar took a decision to abolish Clause 23 of the F-2 agreement, which is an arbitration clause. It does not appear from the said notification that it was issued in exercise of statutory power. 18. Notwithstanding, the aforesaid Gazette Notification for abolition of Clause 23 of F-2 Agreement, respondents entered into the instant agreement with the petitioner, which was duly signed by the Executive Engineer, Road Construction Department. The instant agreement contains Clause 23, which is an arbitration clause. In Clause 27 of the contract it is clearly mentioned that the terms and conditions of the agreement have been read over and explained to the executants who is the Managing Director of the petitioner-company and the Executive Engineer, Road Construction Department. It is not the case of the respondents that petitioner was made aware about the abolition of arbitration Clause 23 from the agreement by resolution of 1992 nor is the case of the respondents that before filing of the instant application, petitioner was intimated about the deletion of Clause 23 of F-2 agreement by gazette notification. 19. The legislature in its wisdom has enacted Arbitration and Conciliation Act, 1996 and the object of the enactment is to safeguard the effort of one party to scuttle contractual obligation which they have entered into an arbitration agreement. Admittedly clause 23 which is an arbitration clause has been incorporated in the F-2 contract. Learned counsel appearing for the State could not' show me any of the provisions of law which debar the authorities of the respondents forever from entering into an arbitration agreement on the ground of the alleged abolition of arbitration clause by Gazette notification. 20. It is well settled that arbitration agreement is a contract within the meaning of Section 91 of the Evidence Act and when the parties to an agreement refer a dispute which arises between them, they cannot lead evidence to vary or add to the terms of agreement by saying that arbitration agreement was not in existence. 21. In the case of Bomanji Ardeshir Wadia v. Secretary of State, 1929 AIR(PC) 34, their Lordships observed that when parties have entered into a formal contract that contract must be construed according to its own terms and not to be explained or interpreted by the antecedent communjngs which laid up to it. 22. Considering the fact of the case, I am of the view that principle of "Expressio Unios Est Eselusia Alterius" shall apply, according to which where there is an express mention in the instrument of a certain thing, it will exclude any other thing of a similar nature. It is well settled principle of law that when an terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document or of a contract then no evidence shall be given in proof of the terms of the contract except the document itself. In my view if a particular clause, although incorporated but excluded from the contract, parties against whom it is to be operated must be given reasonable notice of its non-existence. Considering the entire facts of the case, in my considered opinion clause 23 has been incorporated in the agreement duly consented by the petitioner and the Executive Engineer of the respondent after reading and fully understanding the contents of the said agreement. Since clause 23 does exists in the contract in question, the petitioner has rightly invoked clause 23 of the contract. Consequently, the instant application under section 11(6) of the Arbitration and Conciliation Act for reference of dispute to arbitration as per Clause 23 is maintainable. 10. On account of the reasons discussed above and the opinion in the case of Lakeshwari Builders Pvt. Ltd. , this Court does not find any merit in the instant plea. So far as the grounds of merit are concerned, this Court in exercise of the powers under Section 11(6) of the Act is not required to dissect or analyse the merits of the dispute between the parties. It appears from the submissions of the parties that the agreement still survives and has not been terminated. There is admission of execution of work on the part of the respondent till 2008, whereafter the progress of execution of work has suffered. Both the parties have alleged blame for delayed execution of work against each other. It is evident that there exists arbitral dispute between the parties. Respondents have failed to respond to a request for appointment of an Arbitrator in terms of Clause 23 of the agreement despite notice dated 17th August, 2017 (Annexure-21) issued by the petitioner within 30 days' time stipulated. Thereafter, petitioner has invoked the jurisdiction of this Court under Section 11(6) of the Act. As such, ingredients to seek appointment of an Arbitrator to adjudicate the dispute between the parties have been satisfied by the petitioner. I, therefore, propose to appoint Hon'ble Mr. Justice Permod Kohli (Retired) Former Judge of this Court, at present residing at 22, Sant Nagar, East of Kailash, New Delhi-110065 & "Prakash Villa", 30 Karan Nagar Jammu-180005 having mobile nos. 08826131111(M), 09622141111(M) as an Arbitrator to adjudicate the dispute between the parties. The proposed Arbitrator is required to submit a declaration in terms of Section 12 of Arbitration & Conciliation Act, 1996, as amended. Registry shall communicate the instant order to the proposed Arbitrator. 11. Let the matter be placed on 22nd November, 2018 along with declaration, if any furnished by the proposed Arbitrator."
(3.) A declaration has been furnished by the proposed Arbitrator, which is at Flag-Y. Learned counsel for the parties submit that matter can be referred for adjudication to the learned Arbitrator.;