Nafr High Court
Case Details
1 2025:CGHC:8174 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 46 of 2024 Ms L N Malviya Infra Project Pvt Ltd Having Its Registered OfÏce At Plot No.29 , F/F Sector 11, Dwarka, New Delhi 110078 Corporate OfÏce At T- 10, 3rd Floor City Centre, Press Complex, Plot No. 1, MP Nagar, Zone-I, Bhopal (M.P) Represented Through Authorized Signatory Mr. Arpit Pal Singh. ... Applicant versus 1. State of Chhattisgarh Through Its Secretary Public Works Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, District Raipur (C.G.) 2. Engineer- In- Chief, Public Works Department, Nirman Bhawan, North Block, Sec-19, Nava Raipur, Atal Nagar Dist- Raipur, Chhattisgarh- PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.02.18 18:10:42 +0530 492002 3. Project Director CSRSP ADB Project PWD, Sirpur Bhawan Raipur (C.G.) 4. Project Manager CSRSP ADB Project Division Raipur, (C.G.) 5. Project Manager CSRSP ADB Project Division Durg, (C.G.) 6. Project Manager CSRSP ADB Project Division Balodabazar, (C.G.) 7. Project Manager CSRSP ADB Project Division Bilaspur (C.G.) ... Respondent(s) For Applicant
Legal Reasoning
: Mr. Vaibhav Shukla along with Ms. Astha Shukla, Advocates. For Respondents : Mr. Sangharsh Pandey, Govt. Advocate. 2 Hon’ble Mr. Ramesh Sinha, Chief Justice Order on Board 17.02.2025 1. This is an application under Section 11(4) and (6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. 2. The applicant has prayed for the following relief(s): i. Accept and allow this application for the appointment of an independent and impartial sole arbitrator, in accordance with Section 11 of the Arbitration and Conciliation Act, 1996, to adjudicate upon the claims of the Applicant under the said Agreement dated 22.11.2021 in the interest of justice; ii. Direct the Non-Applicants to pay the costs of these proceedings; and iii. To pass such other or further order(s) as this Hon'ble Court may deem fit in the facts and circumstances of the case in favour of the applicant and thus render justice.” 3. The facts, in brief, as projected by the applicant are that the applicant/claimant is a company incorporated under the Indian Companies Act, 1956. The respondent No. 1 is the State Government of Chhattisgarh and the respondent Nos. 2 to 7 is its functionaries. The respondent No. 3 awarded 2 Consultancy Services to the applicant/claimant for survey, feasibility study and preparation of detailed project report in two phases viz. I and II for two different Groups A and B roads. The applicant was awarded the work of Consultancy Services for Survey, Feasibility Study and Preparation of Detailed Project Report in respect of various roads Group-B for 14 Road (B1-B-14) (365.70 Km) under ADB project vide agreement dated 22.11.2021. The applicant/claimant has completed all the work from Stage I to Stage IV mentioned in clause 8 of the Terms of Reference (for short, the ToR’) under Phase I and II for both Group A and B to the utmost 3 satisfaction of the respondents in accordance with the Contractual agreement executed between the parties for which the respondent No. 3 is liable to make payment to the applicant/claimant under Phase-I and Phase- II as per Clause 6 of the General Terms and Conditions of the contract read with Clause 11 of the ToR under Special Terms and Conditions of the contract. It is imperative to mention here that the respondents have never disputed the quantity and quality of work executed by the applicant/claimant meaning there by the quantity and quality of work is admitted by respondents rather the respondents have accepted the work of the applicant/claimant. But the respondents authorities are not approving the submissions just in order to avoid payments of invoices to the applicant/claimants. The applicant/claimant during the execution of the work has been raising invoices (RA Bills) against the work done and accepted by the respondents at different stages as per Clause 6 of the General Terms and Conditions of the contract read with Clause 11 of the ToR under Special Terms and Conditions of the contract. Between 20-06-22 to 18-09-23, the applicant/claimant has raised 38 invoices to the respondent No. 3 for payment of Rs. 6,75,99,054/- (for both Group A and B Agreements) which was payable by respondents as per Contract Agreement Clause 6.3.C with in 30 days after receipt of Bills. But the respondents in utter derogation of the contractual terms and conditions have not released any payments to the applicant/claimant which completely illegal and arbitrary. 4. Being aggrieved by the highhandedness and nonpayment of admitted, legal and admissible dues of the applicant/claimant running under bills, the applicant/claimant submitted work information explaining detailed progress of works and requested to release due amount for Rs.6,75,99,054/ (for both Group A and B Agreements) to respondent No.3 vide letter No. LNMIP/PL/CGADB/L-4 DPR/2023-24/7882 dt. 15 December 2023. When 4 the respondent No. 3 did not paid any heed to the applicant/claimant's above representation for releasing the payments, the applicant/claimant again submitted a detailed representation vide letter No. LNMIPPL/CGADB/L-4 DPR/2024-25/9921 dated 17-02-24 demanding Rupees 6,75,99,054/- (for both Group A and B Agreements) as Pre- intimation of initiating Legal Proceedings if Payment not released within 30 days and it's difÏcult to continue service and invoke legal provisions as per agreement with interest and damages against the work executed by the applicant/claimants pursuant to the contract agreements executed between the parties. Notwithstanding the repeated reminders, representations when the respondents did not release the genuine, admitted claims of the applicant/claimant, the applicant/claimant was constrained to invoke and raise a dispute by issuing a notice to the respondent No.3 on 16.04.24 under clause 9.2 of the General Terms and Conditions of the Contract for amicable settlement of the dispute and further requested to release the pending payments of the applicant/claimant. When no reply was received by the applicant/claimant pursuant to its notice under clause 9.2 and previous reminders and representation a notice under clause 9.3 General Terms and Conditions of the Contract. Vide letter No. LNMIPPL/CGADB/2024-25/2091 dated 30.05.24 was given to the respondents intimating resolution of the dispute of nonpayment of legal admissible due of the applicant/claimant before Chhattisgarh Madhyastham Adhikaran but the dispute in the present case cannot be referred to Chhattisgarh Madhyastham Adhikaran because the dispute is arising from a consultancy contract which does not come under the definition of "works contract" defined under Section 2 (i) of CG Madhyastham Adhikaran Act, 1983 also in the light of judgment of this Court in ARBR 16/20 and ARBR 23/18. 5. In light of these developments, the applicant is compelled to approach this 5 Hon'ble Court under Section 11 (4) and 11 (6) of the Arbitration and Conciliation Act, 1996, to seek a reference of disputes to arbitration. The agreement dated 22.11.21 which encapsulates the arbitration agreement and the mutual intention of the parties to arbitrate, is included herein for ease of reference. The applicant respectfully submits that the ongoing disputes necessitate judicial intervention to facilitate the constitution of the Arbitral Tribunal, allowing for the resolution of claims and ensuring that the Applicant's legitimate rights are safeguarded. 6. Mr. Sangharsh Pandey, learned Government Advocate appearing for the respondents relying on the return filed on behalf of respondents, opposes this arbitration request application, but the counsel for the applicant submits that the present matter is with respect to the consultancy contract and hence, the objection raised by the State is not maintainable and she has relied upon the judgment passed by a learned Single Judge of this High Court in SMEC International Pty. Ltd. v. State of Chhattisgarh {ARBR No. 23/2018, decided on 13.05.2019}, which has further been afÏrmed by the Hon’ble Apex Court in SLP(C) No. 21120/2019, decided on 11.09.2019. 7. On a pointed query being made to the learned State counsel with respect to the above submission made by Ms. Shukla, Mr. Pandey could not dispute the same and further submits that the respondent will have no objection if any Arbitrator is appointed by this Hon’ble Court for resolving the dispute that has arisen between the parties. 8. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 9. 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 6 if any retired Judge of this High Court is appointed as the Sole Arbitrator. They further submit that Hon’ble Mr. Justice Satish K. Agnihotri, who is a retired Judge of this High Court may be appointed as the Sole Arbitrator. 10. In view of the above consensus between the learned counsel for the parties, Hon’ble Mr. Justice Satish K. Agnihotri a retired Judge of this High Court is appointed to act as the Sole Arbitrator to resolve the dispute involved in this arbitration request between the parties. 11. The Registry is directed to communicate this order to Hon’ble Mr. Justice Satish K. Agnihotri in the proper address. 12. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 13. The arbitration request petition, accordingly, stands allowed. Sd/- (Ramesh Sinha) CHIEF JUSTICE Preeti