AI Structured Summary
Not yet generated for this judgment
Judgment
R.Raghunandan Rao, J
The applicant, which is in the logistic business, had been given a work order bearing No.DCI/OPS/SFPL/Trans/2011/605, dated 18.11.2011 by the Project In charge, Vasco-Da-Gama, Goa of the respondent, for transport of certain material from Goa Port to Ennore Port. The applicant executed the said work. However, the applicant on the ground of extra work and on the ground of delay on account of the actions of the respondent had raised certain claims. The respondent, by a letter dated 20.08.2014, rejected the said claims. Thereupon, the applicant invoked the arbitration clause, under the work order dated 18.11.2011, and sought the appointment of an arbitrator by notice dated 21.11.2014. The respondent, after receiving this notice, replied by a notice dated 11.12.2014 stating that the security deposit of the applicant for Rs.87,774/- would be released, if the applicant issues a no due certificate. The respondent remained silent on the question of appointment of an Arbitrator.
The applicant, on the basis of the above averments, filed the present application for appointment of an Arbitrator, to decide the claims of the applicant, arising out of the execution of the work order dated 18.11.2011.
An advocate had appeared on behalf of the respondent after notice of this application was sent to the respondent. The said counsel for the respondent was not present when the matter came up on 18.10.2019 and 01.11.2019. Thereupon, this Court had directed a notice to be again sent to the respondent as well as the counsel for the respondent to be present before the Court on 22.11.2019. This notice was sent by the Registry.
Thereafter, the matter was called on 22.04.2022, 29.04.2022, 05.05.2022, 20.06.2022 and 22.06.2022. There was no representation for the respondent on all these dates.
The matter was again called on 29.06.2022. There was no representation for the respondent on that day also and the matter was heard.
A perusal of the documents filed by the applicant shows that the applicant, by a legal notice dated 21.11.2014 had invoked arbitration, in accordance with Clause 20 (wrongly mentioned as clause 28 in the notice) of the general conditions of contract, for resolution of the dispute between the applicant and the respondent, in relation to the claims raised by the applicant in the notice dated 21.11.2014. The said clause 20 of the general conditions of contract stipulates that disputes shall be settled through arbitration by an arbitrator to be nominated and appointed by the Chairman and Managing Director of the respondent.
Clause 20 of the general conditions of contract reads as follows:
Settlement of Disputes (GCC Clause 20)
The rules of procedure for arbitration proceedings pursuant to GCC clause 20.2 shall be as follows:
i) ………….
ii) Any dispute or difference arises between the DCI and the contractor in connection with the contract or as to the rights and liabilities of the parties hereto, other than those referred to in above (i) or on matters which are stated to be final and binding on the contractor shall be referred to arbitration by a sole Arbitrator, a person to be nominated and appointed by Chairman and Managing Director, DCI, Visakhapatnam and the award of the sole Arbitrator shall be final and binding upon the parties hereto, subject to the provisions of the Arbitration & Conciliation Act, 1996. The Arbitrator shall give a reasoned Award and it shall be in accordance with the provisions of Arbitration & Conciliation Act, 1996 or any statutory modifications or reenactment thereof. This Arbitrator may from time to time with the consent of the parties enlarge the time for making and publishing the award. The sole Arbitrator is prohibited from awarding any interest in the award either for the pre reference period or pendente lite. The venue of the Arbitration shall be Visakhapatnam and the Court at Visakhapatnam shall have exclusive jurisdiction on all matters with reference to this contract.
The tenders shall have to give a Certificate that the Contractor had not made any payment or illegal gratification to any person/authority connected with the bid process so as to influence the bid process and have not committed any offence the bid process and have not committed any offence under the PC Act in connection with the bid.
The tenderer shall have to give a Certificate that the Contractor shall disclose any payments made or proposed to be made to any intermediaries (Agents etc) in connection with the bid.
In reply to this notice, the respondent issued notice bearing No.DCI/CS/LEGAL/24/2014/76, dated 11.12.2014. In this reply, the respondent denied the claims of the applicant. The respondent also stated that security amount of Rs.87,774/- would be released upon a no due certificate being given by the applicant.
In these circumstances, it must be held that the applicant had invoked arbitration in accordance with the terms of the Arbitration Agreement and the respondent had refused and neglected to appoint an Arbitrator. Consequently, the applicant is entitled for the appointment of an Arbitrator to ascertain and decide on the claims raised by the applicant.
In view of the above, this application is allowed, appointing Sri R.Niranjan, Retired District Judge, 1-315, Club Road, Kothapadugupadu Village, Kovvur Mandal, Potti Sriramulu Nellore District, A.P-524 137 as Arbitrator to decide the claims of the applicant, raised by the applicant in the notice dated 21.11.2014, in accordance with law.
The venue of Arbitration, as set out in Clause 20 of the General Conditions of contract, shall be at Visakhapatnam.
The Arbitrator shall fix his fees in accordance with Schedule-IV of the Arbitration and Conciliation Act, 1996.
Miscellaneous petitions, pending if any, shall stand closed.