Judgment:
GA No.1679 of 2014 AP No.654 of 2014 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE SINGHANIA ENTERPRISES -VersusTHE CHIEF ENGINEER, MILITARY ENGINEERING SERVICES.
Appearance: Ms.Hashnuhana Chakraborty, Adv...for the petitioner.
Mr.Dipanjan Datta, Adv...for Union of India.
BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : June 18, 2014.
The Court : Sufficient grounds have been made out as to why the petitioner was not represented on June 4, 2014 when A.P.No.654 of 2014 was dismissed for default.
The order dated June 4, 2014 is recalled and A.P.No.654 of 2014 is restored to the file.
This restoration application, G.A.No.1679 of 2014, is allowed as above.
By consent of the parties A.P.No.654 of 2014 is taken up for immediate hearing.
In this request under Section 11 of the Arbitration and Conciliation Act, 1996, the petitioner refers to clause 6(b) of the tender documents and clause 70 of the general conditions governing the contract to suggest that there is an arbitration agreement between the parties.
The petitioner refers to its letter of March 19, 2014 by which it invoked the arbitration agreement and called upon the appointing authority to constitute an arbitral tribunal to take up the reference.
The petitioner places the respondent’s reply of March 31, 2014 by which it was asserted that the request for appointment of arbitrator was premature and could not be accepted.
The petitioner was engaged by the army authorities for a civil construction work.
The petitioner cited lack of cooperation and breach on the part of the respondent to terminate the agreement by a letter of March 7, 2014 and made the subsequent request for the reference of the disputes to arbitration.
Clause 70 of the general conditions governing the contract is a rather complex mechanism.
One of the conditions recognised in Clause 70 is that unless both parties agree in writing, the arbitral reference shall not take place until after the completion or alleged completion of the works or termination or determination of the contract under clauses 55, 56 and 57 thereof.
Clauses 55, 56 and 57 of the general conditions cover certain specified situations.
A further condition of clause 70 is that in the event of abandonment of the works or cancellation of the contract, no arbitral reference shall take place till alternative arrangements have been finalized by the Government to get the works completed by or through any other contractor.
Both these conditions in clause 70 referred to in the respondent’s reply to the petitioner’s letter of invocation of the arbitration agreement.
It is not in dispute that the work contemplated by the agreement between the parties has not been completed.
It is also the undeniable position that clauses 55, 56 and 57 of the general conditions have neither been invoked nor did the situation arise for the invocation thereof.
There was no obligation on the part of the appointing authority or the respondent to cause the constitution of an arbitral tribunal or facilitate the initiation of an arbitral reference.
The other condition referred to in the respondent’s reply of March 31, 2014 appears to be valid and a correct reflection of what is contemplated by clause 70 of the general conditions.
In such circumstances, the request for the reference as carried to the Chief Justice or his designate cannot be entertained since there has been no failure on the part of the appointing authority or the respondent to constitute any arbitral tribunal or take steps for the initiation of an arbitral reference in terms of the arbitration agreement embodied in clause 70 of the general conditions governing the contract.
Though it is unnecessary to indicate the consequence of this order, but it implies that the petitioner’s immediate recouRs.to arbitration is not available and the petitioner will be able to pursue the petitioner’s remedies in accordance with law otherwise than by arbitration.
A.P.No.654 of 2014 is disposed of without any order as to costs.
Certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) A/s.