Sr. No. 8
Regular
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Arb P No. 3/2024
M/s Ved Parkash Gupta …Petitioner(s)
Regd. Office H. No.45, Adarsh Colony,
Udhampur (J&K) 182101
Through its Partner
Akashdeep, Age 33 yrs
S/O Sh. Arun Kumar Gupta
R/O H. No.45, Adarsh Colony,
Udhampur (J&K) 182101
Through: Mr. Dheeraj Sharma, Advocate..
Vs.
Union of India ...Respondent(s)
through Engineer-in-Chief (AF) Zone,
C/O 39 Wing, AF
Pin-936839
C/O 56 APO.
Through: Mr. Vishal Sharma, DSGI
CORAM:
HON’BLE THE CHIEF JUSTICE
O R D E R
31.10.2024
1. Heard Mr. Dheeraj Sharma, learned counsel for the petitioner and
Mr. Vishal Sharma, learned DSGI for the respondents at length and perused
the record.
2. The present petition has been filed by the petitioner seeking
appointment of an independent Arbitrator under Section 11(6) of the J&K
Arbitration and Conciliation Act, 1996, to resolve the dispute that has arisen
between the parties.
3. Brief facts, which lead to the filing of the present petition, are that
the petitioner is a partnership concern company carrying on the business as
M/s Ved Parkash Gupta Govt. Contractor and Govt. Order suppliers.
2 Arb P No.3/2024.
4. That on 02.07.2015, CEAFU-54/2013-14 and amended CA No.
CEAFU-10/2015-16 for Provision of ATC BUILDING AF STATION
UDHAMPUR for an amount of Rs. 8,38,79,457.38 was accepted by the
Chief Engineer (AF) Zone, C/O 39 Wing, AF PIN-936839 in favour of the
petitioner. On 06.07.2015, work order No.1(F) was issued in favour of the
petitioner by GE(AF) Military Engineer Services Air Force Station
Udhampur. It is averred in the petition that handing over the work site took
place on 10.07.2015 and on the same very day, the work commenced, and
date of completion of work was fixed as 09.01.2017. It is pertinent to
mention that on 28.04.2016, DO No.2(F) to 13(P) was issued again in favour
of the petitioner by GE (AF) Military Engineer Service Air Force Station
Udhampur in which authority was Condition-6 of IAFW-2249 forming part
of CA and brief description of work to be carried out was Omission of
-II (Plumbing work) Sch -
provisional qualities against Sch ‘A’ part ‘A’ Part
III -IV (Sewage disposal), Part-VIII Sec
(internal water supply) Sch ‘A’ Part
I)(Road, path, culvert), Part-VIII (Sec-II) (Road/hardstanding), Part-IX
(Area drainage), Part-X (Site clearance), Part-XIII (Fencing), Part-XIV
(Landing Tee) Part-XV (Demolition/dismantling), Part-XVII (Credit
Schedule). It is further averred in the petition that under Condition
11(A)(vii) of IAFW 2249, time for completion of work was extended by the
accepting officer and the petitioner company completed the given work
within the extended period of contract.
5. It is submitted by the learned counsel for the petitioner that the final
bill was submitted by the petitioner on 21.12.2021 and vide separate
communication on 19.03.2022, the petitioner claimed the final bill and other
3 Arb P No.3/2024.
claims from the respondents. However, to the utter dismay of the petitioner,
the respondent rejected the claims of the petitioner.
6. It is further submitted by the learned counsel for the petitioner that
vide letters dated 22.05.2022, 30.06.2022 and 15.11.2022, a request is made
to the department for referring the disputes arisen between the parties for
arbitration under Condition-70 of GCC (IAFW-2249).
7. It is stated in the petition that the parties to the contract agreement
are governed by the General conditions of Contract being IAFW-2249. The
clause 70 of the General Conditions of Contract IAFW-2249 provides that
–
all disputes between the parties to the contract shall after written notice by
either party to the contract to the other of them be referred to Sole Arbitrator.
That in this regard, the petitioner firm invoked the arbitration clause 70 of
the contract agreement vide various letters mentioned (supra) and requested
the respondent for reference of the claims to the Arbitrator. However, the
respondent rejected the claims of the petitioner firm.
8. It is averred in the petition that an independent arbitrator is required
to be appointed in this case as no serving officer of the department is eligible
to be so appointed in view of the prohibition contained in Section 12(5) of
Arbitration and Conciliation Act, 1996 read with Schedule 7 thereof.
9. In the above backdrop, the petitioner approached this court under
Section 11(6) of the Arbitration and Conciliation Act, 1996 for reference of
disputes/claims to an independent arbitrator.
10. Mr. Vishal Sharma, learned DSGI appearing for the respondents has
resisted the application for appointment of arbitrator.
11. The fact that the petitioner has raised certain claims which,
according to the petitioner, have not been addressed by the respondents, this
4 Arb P No.3/2024.
Court is of the view that a dispute exists between the parties, which would
require resolution in accordance with the aforementioned Clause 70 of the
General Conditions of Contract and this court is of the view that the dispute
has to be ultimately decided by an Arbitrator.
12. With consensus of the learned counsel for the parties, I appoint
Mr. Satish Chander, ADG Retd., MES, R/O Lane No.4, Greater Kailash
Jammu, to act as the sole Arbitrator in this case, who shall proceed in the
matter to decide the dispute between the parties and make an award in
accordance with law after hearing the parties and charging the prescribed fee
along with incidental expenses to be shared by the parties.
13. Parties may raise their claims and counter claims before the
Arbitrator.
14. Registry to inform the Ld. Arbitrator accordingly.
15. With the above observation and direction, the petition stands
disposed of.
(TASHI RABSTAN)
CHIEF JUSTICE
JAMMU
31.10.2024
Raj Kumar