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Judgment
(per Mr. Manoj Kumar Gupta, C.J.)
The present application has been filed by the applicant under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of sole Arbitrator for resolving the disputes arising between the parties out of Agreement No.76/Contractor/PU-Pithoragarh/BRIDCUL/2023-24.
Mr. Shiv Bhatt, learned counsel for the respondents has invited the attention of the Court towards Clause 24.1 of the Agreement, which is as follows:-
“24.1.If the contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken, the decision shall be referred to the Dispute Review Expert as stated in Contract data, within 14 days of the notification of the Engineer’s decision.”
He submits that firstly the contractor has to approach the Dispute Review Expert against the decision of the Engineer and if he still feels dissatisfied, he can approach the MD, BRIDCUL for his decision in appeal. After exhausting these remedies, he can seek appointment of Arbitrator. In this regard, reliance has been placed on Clause 25.1(a), which is as follows:-
“25.1.(a) If the contractor is dissatisfied with the instructions or decision of the Dispute Review Expert, the contractor may, within 15 days of the receipt of the decision, appeal to the MD, BRIDCUL who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The MD, BRIDCUL shall give his decision within 30 days of receipt of contractor’s appeal. If the contractor is dissatisfied with this decision, the contractor shall within a period of 30 days from receipt of the decision, given notice to the MD, BRIDCUL for appointment of arbitrator failing which the said decision shall be final, binding and conclusive and not referable to adjudication by the arbitrator.”
It seems that the applicant has written a communication dated 31.01.2026 to Project Manager, BRIDCUL requesting him to refer the dispute to the Dispute Review Expert. According to Mr. Shiv Bhatt, learned counsel for the respondents, the request was to be made by the applicant directly to the Dispute Review Expert and therefore the matter has not been referred.
While this Court accepts the submission that under the Agreement, before the dispute is referred to the Arbitrator, two other remedies provided for resolution have to be exhausted, therefore, the instant application seeking appointment of sole arbitrator is pre-mature, but at the same time, this Court is not ready to accept the submission that the reference of the dispute to the Dispute Review Expert is to be made by the applicant. Once the applicant has made request to the Department to send the matter for decision by the Dispute Review Expert, it was the obligation of the Department to have referred the matter to him.
Mr. Shiv Bhatt, learned counsel for the Department states that the Department would refer the dispute to the Dispute Review Expert within two weeks. He further states that the Dispute Review Expert would take decision within two weeks thereafter.
Having regard to the statement made by learned counsel for the respondents- Department, the application stands disposed of in terms of the stand taken before this Court.
Pending application, if any, also stands disposed of.