Parvati Transport and Construction Company Vs. Central Coalfield Ltd. and ors. - Court Judgment

Excerpt:
- 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. - section 16 of the said act very clearly provides that the arbitral tribunal may rule on its own jurisdiction, including the objection with respect to existence or validity of the arbitration agreement.orderm.y. eqbal, j.1. heard mr. rajiv ranjan, learned counsel for the petitioner and mr. r.k. singh learned counsel for the respondents.2. in this application filed under section 11(6) of the arbitration and conciliation act, 1996, the petitioner has prayed for appointment of independent arbitrator for settlement of dispute and claims of the petitioner for the work relating to and in connection with construction of temporary houses at govindpur project of kathara area of the respondents.3. petitioner's case is that by virtue of work order no. gm/960/temp/houses/govindpur/kta/95/230-32 dated 17.1.1996 respondents awarded work of construction of temporary houses at govindpur project at kathara area to the claimant. it is alleged that the site was partly made available to the claimant which was completed within a short time but some of the site was made available after lapse of completion period. petitioner alleged to have made several attempt to start the work but the villagers could not allowed to complete the work. thereafter, several correspondences were made in relation to completion of work, as a result of which petitioner alleged to have sustained loss of rs. 67,61,975.00 on several counts. the petitioner/claimant vide letter dated 24.9.2004 nominated their arbitrator and requested the respondents to refer the matter to the arbitrator in terms of clause 9.7.5 of the general terms and conditions but the respondents could reply and could not appoint their arbitrator.4. respondents in their counter affidavit have stated that in compliance of mandatory requirement of law and the scheme framed by the court, petitioner has not filed original agreement or duly attested copy thereof. the general terms and conditions as contained in annexure-2 to the application is not the part of the contract entered into by the petitioner. clause 9.7.5 referred by the applicant is not the arbitration clause.5. in course of argument, mr. rajiv ranjan, learned counsel for the petitioner drawn my attention to clause 9.7.5 of the agreement by which work was allotted to the petitioner and submitted that petitioner is entitled to invoke jurisdiction of the court for appointment of arbitrator. clause 9.7.5 reads as under :'the company reserve the right to recover/enforce recovery of any over payments detected after the payment as result of post payment audit, or technical examination or by any other means, not withstanding the fact that the amount disputed claims, if any, of the contractor exceeds the amount of such overpayment and irrespective of the facts whether such disputed claims of the contractor are the subject-matter of arbitration or not.'6. the question therefore, that falls for consideration is whether there exists arbitration clause in the agreement entered into between the parties and also whether clause 9.7.5 of the said agreement constitute an arbitration clause. such question, in my opinion, cannot be adjudicated by this court in exercise of administrative power under section 11(6) of the said act. section 16 of the said act very clearly provides that the arbitral tribunal may rule on its own jurisdiction, including the objection with respect to existence or validity of the arbitration agreement. this court has therefore, no option but to refer the matter to an independent arbitrator to decide the disputes including the question with regard to existence and validity of the arbitration agreement.7. this application is, therefore, allowed and the hon'ble justice hari shankar prasad, a retired judge of jharkhand high court is appointed as an independent arbitrator. he is requested to enter into the reference and publish the award within a period of four months from the date of entering into the reference.8. let a copy of this order alongwith relevant papers be sent to the hon'ble justice hari shankar prasad.

Judgment:
ORDER

M.Y. Eqbal, J.

1. Heard Mr. Rajiv Ranjan, learned counsel for the petitioner and Mr. R.K. Singh learned counsel for the respondents.

2. In this application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner has prayed for appointment of independent Arbitrator for settlement of dispute and claims of the petitioner for the work relating to and in connection with construction of temporary Houses at Govindpur Project of Kathara Area of the respondents.

3. Petitioner's case is that by virtue of work order No. GM/960/Temp/Houses/Govindpur/KTA/95/230-32 dated 17.1.1996 respondents awarded work of construction of temporary houses at Govindpur Project at Kathara Area to the claimant. It is alleged that the site was partly made available to the claimant which was completed within a short time but some of the site was made available after lapse of completion period. Petitioner alleged to have made several attempt to start the work but the villagers could not allowed to complete the work. Thereafter, several correspondences were made in relation to completion of work, as a result of which petitioner alleged to have sustained loss of Rs. 67,61,975.00 on several counts. The petitioner/claimant vide letter dated 24.9.2004 nominated their Arbitrator and requested the respondents to refer the matter to the Arbitrator in terms of Clause 9.7.5 of the General Terms and Conditions but the respondents could reply and could not appoint their Arbitrator.

4. Respondents in their Counter affidavit have stated that in compliance of mandatory requirement of law and the scheme framed by the Court, petitioner has not filed original agreement or duly attested copy thereof. The general terms and Conditions as contained in Annexure-2 to the application is not the part of the contract entered into by the petitioner. Clause 9.7.5 referred by the applicant is not the arbitration clause.

5. In course of argument, Mr. Rajiv Ranjan, learned counsel for the petitioner drawn my attention to Clause 9.7.5 of the agreement by which work was allotted to the petitioner and submitted that petitioner is entitled to invoke jurisdiction of the Court for appointment of Arbitrator. Clause 9.7.5 reads as under :

'The company reserve the right to recover/enforce recovery of any over payments detected after the payment as result of post payment audit, or technical examination or by any other means, not withstanding the fact that the amount disputed claims, if any, of the contractor exceeds the amount of such overpayment and irrespective of the facts whether such disputed claims of the contractor are the subject-matter of arbitration or not.'

6. The question therefore, that falls for consideration is whether there exists Arbitration clause in the Agreement entered into between the parties and also whether Clause 9.7.5 of the said agreement constitute an arbitration clause. Such question, in my opinion, cannot be adjudicated by this Court in exercise of administrative power under Section 11(6) of the said Act. Section 16 of the said Act very clearly provides that the Arbitral Tribunal may rule on its own jurisdiction, including the objection with respect to existence or validity of the arbitration agreement. This Court has therefore, no option but to refer the matter to an independent Arbitrator to decide the disputes including the question with regard to existence and validity of the arbitration agreement.

7. This application is, therefore, allowed and the Hon'ble Justice Hari Shankar Prasad, a retired Judge of Jharkhand High Court is appointed as an independent Arbitrator. He is requested to enter into the reference and publish the Award within a period of Four months from the date of entering into the reference.

8. Let a copy of this order alongwith relevant papers be sent to the Hon'ble Justice Hari Shankar Prasad.