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Judgment
Dhiraj Singh Thakur, CJ
P C :
This is an application filed under sub-sections (5) & (6) of Section 11 of the Arbitration and Conciliation Act, 1996, for reference of the disputes arising out of and in connection with the Agreement, dated 19.01.2019.
A construction contract was awarded in favour of the applicant and an agreement was executed in that regard on 19.01.2019. There was delay stated to have been caused in the execution of the contract by the applicant on account of the factors attributable by the respondents. The factors leading to the delay, inter alia, were on account of delay in handing over site, delay in approval of drawings, delay in new land allocation, changes in drawings, handing over of site in piecemeal manner.
It is stated that the issue of delay and hindrances faced by the applicant were brought to the notice of the respondent and also that an extension was sought for the completion of the contract. It is stated that extension was granted up to 27.02.2020 and which was not as per the request of the applicant. Delay is also attributed to the Covid-19 pandemic, which the applicant claims disrupted the execution of the contract in question.
An extension is then stated to have been allowed vide email, dated 28.04.2021, up to 31.05.2021, without considering the impact of the second wave of Covid-19, which had gripped the nation. Finally it is stated that the applicant was served a show-cause notice giving 5 days for termination of the contract which was responded to by the applicant. However, the contract in question was terminated, which was communicated vide communication, dated 01.07.2021.
The applicant claims that disputes have arisen between the parties and the same were envisaged to be resolved through the mechanism of arbitration as contained in Clause 28.2 of the aforesaid agreement. A notice, dated 09.08.2023, placed on record through a Memo filed by the applicant, is stated to have been served upon the respondent invoking the arbitration clause. Proof of service of the said notice by way of acknowledgment due is also placed on record. It is stated that despite the receipt of the said notice, no action was taken to appoint the arbitrator and hence the Arbitration Application.
The respondent in their counter affidavit have taken a stand that the applicant had not invoked the arbitration clause and that no notice was served upon it.
However, in view of the fact that the applicant has placed on record, a copy of the notice, dated 09.08.2023, sent by the applicant through its counsel and served upon the respondent, the objections raised by the respondent that the arbitration clause had not been invoked, fail.
Be that as it may, considering the fact that the disputes have arisen, which are required to be arbitrated in terms of the aforesaid arbitration clause, this Arbitration Application is allowed. Justice T. Sunil Chowdary, former Judge of the High Court of Andhra Pradesh, is appointed as an arbitrator, who shall enter upon the reference and adjudicate upon the disputes arising out of and in connection with the Agreement, dated 19.01.2019, and render the Award within the statutory period. The parties shall be free to file detailed claims and counter-claims, before the learned Arbitrator. The learned Arbitrator shall also be entitled to claim the fee in consultation with the parties. No costs.
Pending miscellaneous applications, if any, shall stand closed.
A copy of this order be communicated to the learned Arbitrator on the address mentioned herein below:
Justice T. Sunil Chowdary,
Flat No.401, Amaravathi Pride Apartments,
Seed Access Road, Near Thallayapalem Village,
Thullur Mandal, Guntur District – 522503,
Ph: 9440405731.