JUDGMENT
Gyan Sudha Misra, J.
1. The applicant-herein is a partnership firm to which a contract was awarded vide order dated 26.6.99 for Rs. 16,32,673/- for repairing Bikaner-Alwar-Behror-Narnol Road which falls on State Highway No. 14. The applicant-firm succeeded in completing this work and thereafter raised a bill for the amount which is payable to the applicant by the respondent-State. The applicant however, raised a dispute that the total payment towards the final bills have not been paid to the applicant and he raised a claim that the entire payment for the work has not been made to the applicant. The contract was awarded to the applicant in regard to which an agreement had also been executed between the parties wherein a clause had been incorporated that in case a dispute arises between the contracting parties, the same shall be referred to the arbitrator for adjudication and settlement and the procedure for referring such dispute has also been laid down therein under Clause 23 which reads as follows:
Clause-23
“If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out of this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as hereinbefore provided for and been so decided, every such matter constituting a total claim of Rs. 50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as the result of such termination shall be referred for decision to the empowered Standing Committee which would consist of the following:
(i) Administrative Secretary Concerned
(ii) Finance Secretary or his nominee not below the rank of Deputy Secretary,
(iii) Law Secretary or his nominee not below the rank of Joint L.R.
(iv) Chief Engineer-cum-Additional Secretary of the concerned Department;
(v) Chief Engineer concerned (Member Secretary)
The Engineer-in-Charge on receipt of application along prescribed fee (the fee would be two percent of the amount in dispute not exceeding Rs. one lakh) from the contractor shall refer the disputes to the committee within a period of one month from the date of receipt of application.”
2. Since the applicant-firm felt aggrieved of the action of the respondent-State which according to the petitioner had not paid the entire amount towards the work order which was granted to him, he filed an application in view of Clause 23 quoted hereinbefore alongwith the fee of 2% before the competent authorities of the respondent-State requesting them to refer the dispute to the Standing Committee alongwith the pay order of Rs. 13,205/- so that the matter could be adjudicated by the Standing Committee in terms of Clause 23. This application was submitted by application dated 3.6.2002. According to the petitioner’s case the respondent did not act upon this application although he has waited for more than a period of one month and therefore, he was compelled to file this application for referring the dispute to the arbitrator by the Court in view of Section 11 of the Arbitration & Conciliation Act, 1996 (for short “Act of 1996”). In support of this application, the counsel for the applicant urged that the respondent-State having failed to act upon Clause 23 of the agreement by not referring the dispute to the Standing Committee although the applicant had acted upon Clause 23 by submitting an application with the request to refer the dispute to the Standing Committee and alongwith that, it also submitted the prescribed 2% fee which came to Rs. 13,205/-, yet the respondent-State failed to honour the agreement by not executing their part by referring the dispute to the Standing Committee and hence the Court should appoint an arbitrator as per the choice of the petitioner or of its own choice as the respondent-State’s right has been forfeited since they have failed to act upon Clause 23 of the agreement by not referring the matter to the Standing Committee.
3. On the aforesaid averment a show cause notice was issued to the respondent-State in response to which they have filed the reply and their counsel Mr. S.P. Sharma also appeared, who contended that the applicant has failed to make out a case for invoking Section 11 of the Act of 1996 as the respondent-State through the Public Works Department duly acted upon Clause 23 of the agreement, as the respondent-State after receiving the application of the applicant and on receipt of the pay order towards prescribed fee, duly took steps within a period of 30 days on 28.6.2002 as reference of this dispute was made by Engineer-in-charge i.e. the Executive Engineer, PWD Division-II, Alwar to the Chief Engineer, PWD, Division-II, Alwar to the Chief Engineer, PWD, Jaipur who is the Member-Secretary of the Standing Committee as per Clause 23 of the agreement alongwith the reply and submissions to the Department. In support of this argument Annexure-R/1 and R/5 have also been annexed alongwith the reply. Thereafter, the Chief Engineer issued the letter on 6.2.2003 to the applicant to appear before the Standing Committee on 3.3.2003 in the Chamber of Secretary, PWD, Rajasthan, Jaipur and the Standing Committee also met for this purpose on 3.3.2003 to conduct the arbitration proceeding, but the elaimant failed to appear. The respondents thereafter again sent a letter to the applicant not to press his application before the High Court for appointment of an arbitrator under Section 11 of the Act of 1996, but to get the matter settled by the Standing Committee as per Clause 23 of their agreement executed between the parties. This was followed by several reminders right from 13.3.2003 to 17.7.2003 and atleast 12 meetings were postponed on account of non appearance of the applicant. Relying on these facts the counsel for the respondent submitted that the respondent-State has duly discharged its contractual obligation by referring the dispute to the Standing Committee well within the period of 30 days as it initiated by referring the dispute to the Standing Committee on 28.6.2003 (correct date should be 28.6.2002) after receipt of the application of the applicant which was submitted on 3.3.2003 (correct date should be 3.6.2002) which is clearly within a period of 30 days. It was further submitted that this Court in another similar matter bearing SB Arbitration Application No. 82/2002 decided on 24.7.2003 reported in Nitin Kumar Agarwal v. State of Rajasthan (RLW 2004 (2) Raj. 719, 2004 (1) WLC 493), had an occasion to deal with a similar dispute wherein the applicant had, argued that even if the dispute has been referred to the Standing Committee as per Clause 23 of the agreement, but notice regarding its initiation has not been served on the applicant within a period of 30 days, the reference cannot be held to be initiated within the prescribed time limit of 30 days as envisaged under Clause 23 of the agreement and on its failure to do so, the authority awarding the contract had forfeited its right to get the matter adjudicated by the Standing Committee. This Court had clearly rejected this argument and had held that if the party awarding the contract who had the authority to refer the dispute to the Standing Committee had referred the same by expressly putting-up a note to that effect and only the communication in this regard was made after 30 days, the same shall have to be treated as having been initiated within a period of 30 days as Clause 23 clearly lays down that appropriate action that is reference of a dispute has to be made within a period of one month which cannot be construed so as to derive the inference that communication has also to be made within this time of 30 days only. A true import of Clause 23 is that the contracting party awarding the contract should infact have the intention to act upon the Arbitration Clause by referring the dispute to the Standing Committee and all steps in this regard should be taken, but it cannot be attributed such a strict interpretation so as to infer that communication also has to be done within a period of 30 days so as to offer a hyper-technical and a legal plank to the other contracting party to snatch the right of the Standing Committee to adjudicate upon the dispute to which the contracting party had willfully submitted. It is no doubt true that in a given case if the facts disclose a situation indicating that the employer has absolutely no intention or willingness to initiate the reference of a dispute-thereby ignoring the application of Clause 23 of the Agreement, a case for appointment of an arbitration in terms of Section 11 of the Act of 1996 would clearly be made out, but if the employer party has taken all possible steps expressing its willingness to adjudicate the dispute and has also acted upon in pursuance of the application, the Court would have no reason to embark upon Section 11 of the Act 1996 by appointing an arbitrator and imposing its choice on the Standing Committee. That clearly is not envisaged under Clause 23 of the Agreement quoted hereinbefore.
4. The counsel for the applicant however, emphasised that there has been total denial of application of Clause 23 attempting to make out a case for appointment of an arbitrator by the Court, but this argument has absolutely no legal force for the reasons stated hereinbefore as it is the applicant who has failed to appear before the Standing Committee time and again as the Committee had granted adjournment after adjournment and one notice after another notice to the applicant to appear before the Committee.
5. Under the circumstance it is not a fit case where the Court should intervene and appoint an arbitrator in terms of Section 11 of the Act of 1996. Consequently, this application does not deserve to be entertained and hence, it stands dismissed.