S.B.Civil Misc. Application No.16/2008 (Arbitration Application)
Chiman Lal Middha
vs
Rajasthan Housing Board & ors.
1
IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT
JODHPUR.
ORDER
Chiman Lal Middha vs. Rajasthan Housing Board
& ors.
S.B. Civil Misc. Application No.16/2008
( Arbitration Application ) under Section 10 & 11
of the Arbitration and Conciliation Act, 1996 for
appointment of an Arbitrator.
Date of Order: December 19th, 2008.
PRESENT
HON'BLE MR. PRAKASH TATIA, J.
Ms. Rekha Borana for the applicant.
BY THE COURT:
Application under Sections 10 and 11 of the Arbitration and
Conciliation Act, 1996 (for short ‘the Act of 1996’) was submitted
before the court of District & Sessions Judge, Hanumangarh by
applicant Chiman Lal Middha, Proprietor of M/s Chiman Lal Rakesh
Kumar, 158 Durga Colony, Hanumangarh wherein notices were
issued to the non-applicants who submitted reply before the court
below. In view of the Notification No.2/SRO/2006 dated 31.5.2006,
the court of District Judge lost its jurisdiction and, therefore, the
arbitration application has been transferred to this Court by the
order of the learned Addl. District & Sessions Judge No.1,
Hanumangarh to whom the matter was transferred by the learned
S.B.Civil Misc. Application No.16/2008 (Arbitration Application)
Chiman Lal Middha
vs
Rajasthan Housing Board & ors.
2
District Judge. The order dated 27.2.2008 for sending the matter
to the High Court was passed by the court after hearing both the
parties. Upon receipt of the matter, this petition has been
registered in the High Court and the notices were issued to the
respondents. Inspite of service of notices, the respondents did not
appear, therefore, only counsel for the applicant was heard.
As per the facts mentioned in the application, a notice
inviting tender No.7/98-99 was issued by the Rajasthan Housing
Board for construction of certain quarters. In the said process of
award of the contract, the applicant states that he took part in the
negotiation wherein he gave rates for the work in question and
according to the petitioner, he was entitled to the work order but
accepted the rates given by non-applicant no.2 with different
rates. According to the applicant, if the rates given by the
applicant would have been accepted then the total consideration
for the contract would have been Rs.17,16,611/-, whereas that has
been reduced in the work order No.2697 dated 11.2.1999 to
Rs.16,19,587/-. When the applicant received the work order
No.2697 dated 11.2.1999, the applicant immediately protested
against it by letter dated 16.2.1999 but the correct work order was
not issued containing the correct amount of the work. The
applicant after giving more facts about how the work was done and
what is the claim of the applicant, submitted that he is entitled to
S.B.Civil Misc. Application No.16/2008 (Arbitration Application)
Chiman Lal Middha
vs
Rajasthan Housing Board & ors.
3
issuance of fresh contract containing the correct rates of the
contract and alternative, if it is found that the work order time has
expired on 16.12.1999, then it may be held that the Rajasthan
Housing Board is responsible for non-completion of the work and
the respondents may be directed to prepare the final bill and pay
Rs. 2,29,163/- to the applicant. In addition to above, the applicant
has raised other claims and gave notice to the respondents under
Clause 23 of the contract containing the arbitration clause for
appointment of the arbitrator and also sent a DD of Rs.250/- to the
respondent for that purpose. According to the applicant, even
after the notice, the arbitrator has not been appointed by the
respondents and, therefore, the applicant is seeking appointment
of arbitrator through the court under Sections 10 and 11 of the Act
of 1996.
The respondents submitted reply before the court below and
admitted that work order of Rs. 16,19, 587/- was given to the
applicant and this is the correct cost of the work. The applicant
was supposed to deposit the performance guarantee of Rs.81,000/-
which was admitted by the applicant. Thereafter, the applicant
started work from 17.2.1999 which should have been completed
before or on 16.12.1999 but the applicant did not complete the
work. The applicant’s other claims were also denied and it is stated
that Clause 23 of the contract could have been invoked only when
S.B.Civil Misc. Application No.16/2008 (Arbitration Application)
Chiman Lal Middha
vs
Rajasthan Housing Board & ors.
4
the work is completed by the contractor. The respondents
submitted that the arbitrator cannot be appointed in the facts of
the case.
Since the contract is admitted and there is clause of
arbitration and which has been raised by the party to the
arbitration agreement and the respondents inspite of notice, have
not appointed arbitrator, therefore, it will be appropriate to
appoint an arbitrator.
Shri Jagjit Singh, Retired Addl. Chief Engineer, Irrigation,
12-A, Sadul Ganj, Near State Garage, Bikaner is appointed as
arbitrator. The fees for the arbitrator will be Rs.15,000/- and the
arbitrator shall be paid Rs.5000/- as initial fees and the office
expenses for the arbitral proceedings shall be payable by the
applicant initially and the arbitrator while deciding the dispute
may fix the liability and responsibility for payment of the fees
which shall be payable as per the order of the arbitrator.
The application is, therefore, allowed accordingly.
A copy of this order be sent forthwith to the arbitrator.
(PAKASH TATIA),J.
mlt