Arb P/16/2022 of KAPAHI CONTRACTS PVT LTD TH NISHCHAL KAPAHI Vs UNIVERSITY OF JAMMU TH REGISTRAR AND OTHERS on 30 December 2022

1. The petitioner has filed instant petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Act”) seeking a direction for appointment of independent Arbitrator to consider his claims and to settle the disputes between the parties under arbitration agreement on the strength of averments made and grounds taken in the petition.

2. The brief facts of the case are as under:

The respondents-University of Jammu vide allotment order No.UWD/2016-17/757-60 dated 09.06.2016 assigned work order to the petitioner, M/s Kapahi Contracts Private Limited for construction of Sports Hostel (Basement Structure only) at new University Campus, Jammu for an amount of Rs.1,09,77,405/-. During the currency of the execution of the work, the respondents held a Building Committee Meeting wherein decided and approved enhancement of execution of work upto the cost of Rs.150.00 lakhs and the decision taken in the aforesaid meeting was further approved in the meeting of RUSA Project. After the approval of the additional work upto the cost of Rs.150.00 lakhs, the petitioner was pushed to construct the additional floor of the Sports Hostel. Thereafter as per the instructions and proper supervision, the petitioner successfully completed the additional floor slab on 23.03.2017, well before the given timeframe. In terms of decision taken in the meeting of RUSA Project on 23.02.2017, the respondent No.2 vide order No.Fin/2017-18/1891-93 dated 05.02.2018, sanctioned an amount of Rs.64,36,850/- against the work done by the petitioner, however, despite completion of the work, pending amount of Rs.33.00 lakhs along with interest has not been released, which forced the petitioner to approach this Court by filing a petition bearing WP(C) No.3269/2019 title ‘M/s Anil Kumar Kapahi vs. University of Jammu and others’. The aforesaid petition was disposed of by the coordinate Bench of this Court vide order dated 13.09.2019 with a direction to the respondents to consider the case of the petitioner for payment of such an amount as is admittedly payable within four weeks and in case there is no impediment. For non-compliance of order dated 13.09.2019 by the respondents, the petitioner filed a contempt petition bearing CCP(S) No.696/2019 before this Court. During the pendency of the contempt petition, an amount of Rs.31,43,454/- was released by the respondents, however, the petitioner received the same under protest as interest on the withheld amount was not given. Thereafter, the contempt proceedings were closed and the petitioner was given liberty to avail remedies available under law.

The petitioner also approached the respondents-University of Jammu by filing a representation in terms of Section 11 of the Actand requested to appoint an independent Arbitrator for settlement of dispute but the respondents failed have failed to appoint the Arbitrator, which forced the petitioner to approach this to file present arbitration petition.

3. Heard learned counsel appearing for the petitioner and considered his submissions.

4. It is reported by the Registry that the official website the Department of Post shows the registered posts qua the notices for service of the respondents stand delivered. Therefore, it is assumed that the service is effected upon the respondents, however, they have not cared to put their appearance before the Court and also failed to file the objections, therefore, this Court is left with no other choice but to decide the petition in exparte.

5. It would be advantageous to reproduce arbitration clause 37 in Notice Inviting Tender bearing e-NIT No.148 dated 18.02.2016 and arbitration clause 13 of work allotment order dated 09.06.2016 hereunder:

“37. In case of any disputes arising out of the contract shall be referred to the Arbitration i.e., Vice Chancellor, University of Jammu. The decision of the arbitrator shall be final and binding upon the parties concerned. The arbitration shall be conducted in accordance with the arbitration procedure stated in the J&K Conciliation and Arbitration Act of 1997 issued vide SRO No.403 vide Notification of J&K Govt., “Law Department” 11[th]December, 1997.”

“13. In case of any dispute arising out of the contract shall be referred to the Arbitrator, the Vice-Chancellor, University of Jammu, whose decision shall be final and binding on both the parties.”

6. The petitioner has also submitted his representation dated 08.11.2021 to the respondents, Annexure-IX, appended with this petition, invoking arbitration clause 13 of the work allotment order dated 09.06.2016 as referred to above and sought appointment of an Arbitrator for settlement of the dispute which had arisen between the parties. The copy of the representation annexed with this petition shows that the respondents have received the same but even then they have failed to appoint an Arbitrator in the matter.

7. In the given circumstances of the case and in view of the fact that the respondents have failed to appoint an Arbitrator in terms of the work allotment order dated 09.06.2016, Shri R.K Gupta, Sr. Advocate, is appointed as sole Arbitrator who shall proceed in the matter in accordance with the provisions of the Act to make an award within the time provided in the Act itself, after charging the prescribed fee along with incidental expenses to be shared by the parties.

8. The petition stands disposed of accordingly.

9. Registry to communicate a copy of this order to Shri R.K Gupta, learned Arbitrator through e-mail as well as ordinary mode.

(Tashi Rabstan) Chief Justice (Acting)

Jammu: 30.12.2022Surinder

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No