Nafr High Court
Case Details
VAISHALI LUCKY NAGARIA Digitally signed by VAISHALI LUCKY NAGARIA Date: 2025.09.04 18:20:46 +0530 1 2025:CGHC:44393 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 13 of 2025 • M/s Shankara Enterprises Through Partner Harihar Upadhyay, S/o Shri Parmanand Upadhyay, Aged About 34 Years R/o Main Road Sarafa Line, Kawardha, P.S. Kawardha, District Kawardha Chhattisgarh versus --- Applicant 1. Municipal Corporation Bilaspur Through Commissioner, Municipal Corporation Near Nehru Chowk, Bilaspur District Bilaspur (C.G. 2. Executive Engineer (Pmay And Hfa) Municipal Corporation Bilaspur (C.G.) --- Respondents ARBR No. 18 of 2025 • M/s Shankar Enterprises Through Partner Harihar Upadhyay, S/o
Legal Reasoning
Shri Parmanand Upadhyay, Aged About 34 Years, R/o Main Road Sarafa Line, Kawardha, P.S. Kawardha, District Kawardha Chhattisgarh. Versus ---Applicant 1. Municpal Corporation Bilaspur Through Commissioner, Municipal Corporation Near Nehru Chowk Bilaspur, District Bilaspur (C.G.) 2. Executive Engineer (Pmay And Hfa) Municipal Corporation, Bilaspur (C.G.) (Cause title is taken from Case information System) --- Respondents For Applicants : Mr. Vikram Kumar Dixit, Advocate For Respondents : Mr. Pankaj Agrawal, Advocate 2 Hon’ble Mr. Ramesh Sinha, Chief Justice 01/09/2025 Order on Board 1. These are the Arbitration requests/petitions filed by the applicant under Section 11(6) of the Arbitration and Conciliation Act, 1996. 2. Heard on I.A. No.01 of 2025, which is an application for seeking exemption from filing certified copy of Annexure-A/1 and I.A. No. 02 of 2025, which is an application for seeking exemption of typed copies of annexures (Page No.20 to 32 are faint) (in ARBR No.13/2025). 3. Also heard on I.A. No.01 of 2025, which is an application for seeking exemption from filing the agreement original copy and not certified copy. 4. For the reasons stated in the applications, the same are allowed and the applicant is exempted from filing certified copy of Annexure-A/1 and copies of annexures (Page No.20 to 32 are faint) in ARBR No.13/2025) and applicant is also exempted from filing the agreement’s original copy and not certified copy. 5. By these arbitration request petitions, the applicant seeks appointment of the sole arbitrator to resolve the dispute that has arisen between the parties. 6. Since the facts and issue involved in the present arbitration request petitions are similar, they are being considered and
Decision
disposed of by this common order. ARBR No.13/2025 is taken as the lead case. 7. The facts of the case in ARBR No.13/2025, in brief, are that the 3 applicant M/s “Shankara Enterprises” is carrying on the business of civil construction. The Applicant participated in the tender process floated by the respondents for the construction of 319 numbers (G+3) of DU's by monolithic technology with infrastructure (road, drain, water supply, sewerage, rainwater harvesting etc.) under HFA scheme, AHP project at Vambay Awas at Behtarai, District Bilaspur. Since the Applicant was found L-1, he was awarded work order for the construction of the said housing project under Prime Minister's Awas Yojna and an agreement with effect thereto, describing the conditions of the contract and relevant clauses was executed between the Applicant and the respondent No.3. The agreement was executed on 17.08.2017 and based on it, the 3 work-orders, were issued on 18.08.2017 and the time allowed for the work from dated written order to commence was 18 Months (including rainy season). The agreement executed between the parties contains compensation events for consideration of the extension of time without penalty which is provided under article 1.14.1 of the said agreement. 8. Mr. Dixit, learned counsel appearing for the applicant would submits that there is an arbitration clause also in the said agreement at clause No.1.18 which provides that all questions and disputes arising out of the agreement relating to the specifications designs, drawings and instructions concerning the works or the execution or failure to execute the same, shall be resolved by the arbitration. After receiving the work order, the Applicant started the construction work to the best of his capacity after having the soil testing and having the drawing and design approved as per 4 the NIT, the work site of the applicant was divided into 11 Blocks in the Slum area, where the Applicant was set to commence the construction work. Initially, the Applicant was provided with only 10% work site as of 29.10.2017, the vacant land was made available only for 2 Blocks. Upto 15.03.2018, only the layout of the 3rd, 4th & 5th Block was given and it is also the case of the Applicant that since there was an encroachment and the persons residing thereon was not removed, the layout of the 07 Blocks could not be provided to the Applicant which could be provided only on 07.07.2021. Despite the communication made by the Applicant on various occasions, the respondents have failed to act over the same reason that there were encroachments on the proposed site and the respondents have failed to provide a clear work site, the effect of COVID-19 situation, inflation in commodities caused and lack of funds for the project leading to failure of payment of running bills and also non-granting of escalation. On 08.12.2022, a final notice was issued by the respondents asking the Applicant to submit his reply as to why the security deposit and earnest money may not be forfeited and the agreement may not be terminated as per clause 1.15 of the said agreement. The reply to the final notice was submitted by the Applicant on 17.12.2022 and prayed for escalation or else their agreement may be terminated under clause 1.19(b) of the said agreement dated 17.08.2017. In the said reply dated 17.12.2022, the Applicant has also claimed payment of running bills which remained unpaid as per their claims. Ultimately, the respondents, after considering the conduct of the applicant that despite notices 5 he has not completed the building work in time, ultimately on 06.04.2023, the agreement with the applicant was terminated and his earnest money, security deposit and performance guarantee were forfeited and debarred the Applicant to participate in further tender process. 9. This order dated 06.04.2023 was challenged by the applicant by way of Writ Petition before this Hon'ble Court and same was registered as Writ Petition(C)1956/2023, which was disposed off on 04.03.2024. The Hon'ble Court had granted liberty to the applicant to approach the Respondents for the appointment of the arbitrator. In view of the order dated 04.03.2024, the applicant approached the Respondents for the appointment of the arbitrator and has sent them a notice through speed post on 04.08.2024 for appointment of the arbitrator. Thereafter, again on 05.12.2024, a reminder notice was sent for appointment of the arbitrator. 10. In view of the agreement executed between the parties according to clause No. 1.18, inserted in annexure-A/1, general terms and conditions, whenever there would be any dispute or difference whatsoever arising between the parties out of relating to constitution, meaning and operation of this contract or breach thereof shall be settled by a sole arbitrator appointed by the Chief Executive Officer, State Urban Development Authority (SUDA)/Secretary, Govt. of C.G., Urban Admn. & Development and the award of the said arbitrator will be final and binding on the parties concern. In pursuance of the said clause, which is binding on both the parties, the applicant is praying that the Hon'ble Court may kindly be pleased to allow the instant 6 application and an Arbitrator may kindly be appointed to resolve the dispute arising between the parties in toto in view of the general terms and conditions. 11. So far as, Arbitration request No.18/2025 is concerned the applicant participated in the tender process floated by the respondents for the construction of 174 number (G+3) of houses by monolithic technology with infrastructure (road, drain, water supply, sewerage, rainwater harvesting etc.) under Prime Minister Awas Yojna (PMAY) at Chingrajpara, District- Bilaspur. Since the petitioner was found L-1, he was awarded work order for the construction of the said housing project under Prime Minister’s Awas Yojna and an agreement with effect thereto, describing the conditions of the contract and relevant clauses was executed between the applicant and respondent No.3. The agreement was executed on 17.08.2017 and based on it the 3 work-order was issued on 18.08.2017 and the time allowed for the work from dated written order to commence:18 months (including rainy season). The other factual matrix of the case are almost similar. 12. In view of the above factual matrix, the applicant prays that this Hon’ble Court may appoint a Sole Arbitrator to resolve the dispute that has arisen between the parties. 13. Mr. Pankaj Agrawal, learned counsel appearing for the respondents, though, opposes the submissions made by the learned counsel for the applicant, however he submit that the respondent shall have no objection if this Court appoints any retired High Court Judge as an Arbitrator for resolving the dispute 7 between the parties. 14. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 15. A query was put to learned counsel appearing for the parties as to whether they are agreeable for a common name who can be appointed as Arbitrator, learned counsel for the parties submitted that they would have no objection if any retired Judge of this High Court is appointed as the Sole Arbitrator. They further submit that Hon’ble Mr. Justice V.K. Shrivastava, who is a retired Judge of this High Court may be appointed as the Sole Arbitrator. 16. In view of the above consensus between the learned counsel for the parties, Hon’ble Mr. Justice V.K. Shrivastava, a retired Judge of this High Court is appointed to act as the Sole Arbitrator to resolve the dispute that has arisen between the parties, with respect to both the arbitration requests. 17. The Registry is directed to communicate this order to Hon’ble Mr. Justice V.K. Shrivastava, in the proper address. 18. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 19. The arbitration requests/petitions, accordingly, stands allowed. Sd/- (Ramesh Sinha) CHIEF JUSTICE vaishali