M/S. POWER GEAR LIMITED Vs. M/S. GULBARGA ELECTRICITY SUPPLY COMPANY LTD.

JUDGEMENT

(1.) PETITIONER and respondent -M/s Gulbarga Electricity Supply Company Limited ('GESCOM" for short) entered into a contract for establishing a sub¬station at Bilwara village in Jewargi Taluk of Culbarga District on turnkey basis, pursuant to letter of intent dated 12.05.2005 and letter of acceptance dated 23.05.2005 as recorded in the communication dated 31.01.2006, Annexure -A. The terms relating to resolution of disputes and arbitration between the parties are at clauses 48 and 49 of the General Conditions of Contract, Annexure -C, as also, under clause 4.0 under the nomenclature, "Settlement of Dispute" in the Contract Agreement dated 18.07.2005, Annexure -D, making reference to clauses 48 and 49 of the general conditions of contract.

(2.) IT appears that the respondent made payment on 18.09.2010 pursuant to the final bill dated 12.09.2009 whereafterwards, petitioner is said to have addressed a letter dated 02.02.2011, Annexure -El over the deduction of Rs. 15,75,454/ -, followed by letters, Annexures -E2, E3 and F, which when not responded to by the "Engineer" though obliged to do so under clause 48.4 of general conditions of contract within 30 days, led to letter dated 28.09.2012, Annexure -G nominating one Sri. D.V.Nagabhushan, Chartered Engineer and Arbitrator, as an arbitrator with a request to the respondent to nominate another arbitrator from its side in accordance with clause 49 of the general conditions of contract, failing which, the sole arbitrator nominated by the petitioner would stand appointed as an arbitrator. Nothing precious when done in response to the said letter, petitioner addressed yet another letter dated 12.12.2012, Annexure -Hl to which the respondent by a reply dated 26.12.2012, Annexure -H2 stated that clause 48.2 of the general conditions of contract can be taken recourse to only during work in progress and since there is delay of five years in raising the dispute, arbitration clause cannot be invoked. That was responded to by letter dated 12.01.2013, Annexure -J1 stating that petitioner could invoke clause 48.2 of the general conditions of contract. Respondent by letter dated 29.01.2013, Annexure -J2 declined to accept the appointment of sole arbitrator, followed b> yet another letter dated 12.04.2013, Annexure -L reiterating the same stand. Hence this petition.

(3.) HEARD the learned counsel for parties, perused the pleadings and examined the terms relating to settlement of dispute and arbitration under the general conditions of contract.