Jammu and Kashmir High Court
Arb P/42/2021 of M/S DES RAJ NAGPAL CONTRACTORS PVT. LTD(FORMALLY M/S DES RAJ NAGPAL),TH DIRECTOR ASHWANI NAGPAL Vs SHRI MATA VAISHNO DEVI UNIVERSITY, KAKYAL TH REGISTRAR on 31 December 2022
JAMMU & KASHMIR AND LADAKH AT JAMMU Arb P No. 42/2021 M/s Des Raj Nagpal Contractors Pvt. Ltd. ….Petitioner(s)/Appellant(s) Through :- Mr. Anil Mahajan, Advocate. V/s Shri Mata Vaishno Devi University, Kakyal ….Respondent(s) Through :- Mr. U. K. Jalali, Senior Advocate with Ms.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Arb P No. 42/2021
M/s Des Raj Nagpal Contractors Pvt. Ltd.
….Petitioner(s)/Appellant(s)
Through :- Mr. Anil Mahajan, Advocate.
V/s
Shri Mata Vaishno Devi University, ….Respondent(s)Kakyal Through :- Mr. U. K. Jalali, Senior Advocate with Ms. Shivani Jalali, Advocate.
Coram:
HON’BLE THE CHIEF JUSTICE (ACTING)
ORDER 31.12.2022
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
1. The petitioner has filed instant petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the 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 ground taken in the petition. 2.Brief facts of the case are stated infra:
That in response to the NIT dated 09.01.2018 floated by respondent no.1, the petitioner submitted the tender. Being successful bidder, the petitioner firm was awarded the contract for Rs.1,69,55,760/- for construction of Sewage Treatment Plant bases on Moving Bed Reactor Technology of 500 KLD, 250 KLD capacity and construction of sewer pipe lines of 250 mm dia, 200 mm dia to cater the requirements of Hostels, Academic and Residential area at SMVD University, Kakryal, Katra. In regard to above, contract agreement dated 18.12.2019 came to be executed between the respondent no.1 and the petitioner company. As per the conditions of Contract, the works commenced in April, 2018 and was completed in February, 2019 and taken over by the respondents.
3. It is the case of the petitioner that the petitioner has successfully executed the contract but the payment was not released and paid despite having agreed by the respondents. In regard to its grievance, petitioner vide letter dated 16.07.2020 addressed to respondent no.2 requested the release of payment and reference for amicable settlement of the disputes. Further, petitioner vide letter dated 17.08.2020 has further requested the respondent no.2 for appointment of arbitrator for settlement of the dispute and also submitted its claims.
4. It is further averred in the petition that the respondent no.1 vide communication sent in October 2020 to the petitioner has admitted the liability and stated that the part payment is being released and further balance amount would be shortly released when the funds are made available.
5. It is submitted that the petitioner vide notice dated 16.07.2020 addressed to the respondents has requested for amicable settlement of disputes and for invocation of Part-7 of the agreement in case of failure to amicably settle the claim of the petitioner.
6. The non-payment of the balance amount to the petitioner constrained it to file the present petition.
7. The respondents have filed the objections. Paras 9 and 10 is reproduced hereinbelow for the sake of convenience.
9. It is also an admitted fact that the petitioner submitted a letter dated 16.07.2020 to the University stating therein that as the full payment has not been released for the work executed by him, the dispute may be amicably settled.
10. Again, vide his letter dated 17.07.2020, the petitioner submitted a letter to the University requesting the Competent Authority for appointment of Arbitrator under Clause 7 of the agreement for settlement of the dispute.
8. Mr. Anil Mahajan, learned counsel for the petitioner has produced a communication dated 14.09.2020 of the respondents admitting liability for payment of the petitioner. Said communication is taken on record.
9. Clause 7 of the Agreement reads as:
7. Settlement of Disputes: In the event of any dispute, the same shall be submitted for arbitration. The arbitrator shall be appointed by the Vice-Chancellor Shri Mata Vaishno Devi University whose decision shall be final and binding on both the parties.
10. In view of amendment carried out in Section 12 of the Act, no person connected in any manner to either of the party be appointed as arbitrator.
11. Further, the respondents have failed to respond to the notice dated 16.07.2020 of the petitioner; and the admission of liability on the part of the respondents in terms of communication dated 14.09.2020, the petition is allowed by appointing Hon’ble Mr. Justice (Retd.) Sunil Hali, Judge, High Court of J&K 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.
12. The application stands disposed of accordingly. 13.Registry shall communicate a copy of this order to learned Arbitrator through e-mail as well as ordinary mode.
Jammu: 31.12.2022Raj Kumar
(Tashi Rabstan) Chief Justice (Acting)