Lal Babu Singh Vs. State of Bihar and ors. - Court Judgment

Excerpt:

.....exists between parties which needs adjudication through arbitrator--application praying that an independent sole arbitrator may be appointed, was allowed--a retired judge of high court was appointed as an arbitrator for ad judication of dispute. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - the department failed tosupply materials and other requirementsin spite of reminders and ultimately thepetitioner was forced to stop the work. the petitioner said to have remindedupto october, 1994. it is stated that finalmeasurement of the work was taken inthe month of november to december,1994 only but the respondents failed tomake payment and deleted some of theclaim of the petitioner......the claim is not admissible for short supply and/or no supply and/or delay in supply of departmental materials and/or equipments. various other facts have been stated in the counter-affidavit.5. it is not in dispute that the agreement was entered into and the work wasawarded in 1990 and under the agreement clause 23 was available to the parties. according to the respondents it was deleted/cancelled in 1992. the respondents in their counter-affidavit have not taken a defence that the claim or the application is barred by limitation. the only defence taken by the respondents is that the claim is not admissible. in my opinion, whether the claim is admissible or not and whether the petitioner is entitled to the amount claimed by him are the questions to be decided by the arbitrator.6. admittedly, dispute exists between the parties which needs adjudication through arbitrator. the petitioner has prayed that an independent sole arbitrator may be appointed to resolve the dispute. on this prayer the respondent has not said that any person other than independent sole arbitrator be appointed.7. for the reason aforesaid, i allow this application and appoint hon'ble s, roy, a retired.....

Judgment:

ORDER

M.Y. Eqbal, J.

1. Heard Mr. S.J. Roy, learned counsel for the petitioner and Mrs. Ritu Kumar, learned counsel, for the respondents.

2. This is an application under Section 11(6)(a) of the Arbitration and Conciliation Act, 1996 wherein a prayerhas been made for appointment of an independent arbitrator for reference of dispute for adjudication.

3. The petitioner's case, inter alia, isthat he was awarded a contract work bythe Superintending Engineer, Road Construction Department, Road Circle, Ranchiand an agreement was entered into between the parties being Agreement No.24F2 of 1989-90 and contract was forwidening and strengthening of K.T.K.Road. The petitioner completed themajor portion of the work but due toshortage of bitumen and road roller,which was to be supplied by the RoadConstruction Department, he could notfinish his work. The Department failed tosupply materials and other requirementsin spite of reminders and ultimately thepetitioner was forced to stop the work.The petitioner said to have remindedupto October, 1994. It is stated that finalmeasurement of the work was taken inthe month of November to December,1994 only but the respondents failed tomake payment and deleted some of theclaim of the petitioner. The petitioner objected to the said deletion made by theExecutive Engineer. However, theDepartment informed the petitioner thatmatter of objection was under consideration, vide letter dated 10.12.1996 and13.12.1997. The petitioner thereaftercame to know from the letter dated16.7.1998 and 16.2.1999 that the Department has not solved the dispute.

A counter-affidavit has been filed by the respondents stating, inter alia, that clause 23 of the Agreement was deleted by the respondents, vide letter dated 18.11-1992 and as such, there is no question of appointment of Arbitrator. It is further stated that as per clause 3.2.1(c) of the agreement the claim is not admissible for short supply and/or no supply and/or delay in supply of departmental materials and/or equipments. Various other facts have been stated in the counter-affidavit.

5. It is not in dispute that the agreement was entered into and the work wasawarded in 1990 and under the agreement Clause 23 was available to the parties. According to the respondents it was deleted/cancelled in 1992. The respondents in their counter-affidavit have not taken a defence that the claim or the application is barred by limitation. The only defence taken by the respondents is that the claim is not admissible. In my opinion, whether the claim is admissible or not and whether the petitioner is entitled to the amount claimed by him are the questions to be decided by the Arbitrator.

6. Admittedly, dispute exists between the parties which needs adjudication through arbitrator. The petitioner has prayed that an independent sole arbitrator may be appointed to resolve the dispute. On this prayer the respondent has not said that any person other than independent sole arbitrator be appointed.

7. For the reason aforesaid, I allow this application and appoint Hon'ble S, Roy, a retired Judge of this Court, as an Arbitrator for adjudication of the dispute. The matter is referred to the said Arbitrator with a direction to decide the claim in accordance with law within three months from the date of receipt of a copy of this order.

8. Application allowed.