M/s Radhey Shyam Agrawal through it’s Authorised Representative, Mr. Sanjay Agarwal v. M/s Uranium Corporation of India Limited through its DGM
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Arbitration Application No. 17 of 2023 M/s Radhey Shyam Agrawal through it’s Authorised Representative, Mr. Sanjay Agarwal .. Applicant ... ... ... ... ... Versus M/s Uranium Corporation of India Limited through its DGM (Civil), having offices at Jadugoda Mines, Singhbhum, Jharkhand, 831002 … … ... Respondent
Legal Reasoning
CORAM: SRI SANJAYA KUMAR MISHRA, C.J. --------- For the Applicant: For the Respondent: --------- Mr. Ankur Upadhyay, Advocate Mr. Vishal Kumar, Advocate Mr. Anoop Kr. Mehta, Advocate Mr. Atul Rai, Advocate 06/Dated: 08.12.2023 --------- By filing this application the applicant, being a company incorporated under the Companies Act, 1956 has prayed for appointment of an independent and impartial arbitrator to arbitrate certain disputes that have arisen inter-se the parties out of the contract agreement dated 04.07.2018 for works of raising 4th stage tailing dam from existing RL 135 M to RL 143 M (2nd Phase of 1st stage tailing dam) and other related civil jobs at Jaduguda tailing pond. In course of hearing of the application, at this stage, there is no dispute that there is an agreement between the applicant and the respondent and the agreement contains arbitration clause. The said clause reads as follows: “51.1 Except where otherwise provided for in the Contract, all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the Contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof, shall be referred to the sole arbitration of the Chairman & Managing Director of Uranium Corporation of India Limited, Jaduguda and if the Chairman and Managing Director is unable or unwilling to act to the sole arbitration, of some other person appointed by the Chairman & Managing Director, willing to act as such arbitrator. There will be no objection if the arbitrator so appointed is an employee of Uranium 2. Corporation of India Limited, Jaduguda and that he had to deal with the matters to which the Contract relates and that in the course of his duties as such he had expressed views on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reasons, such Chairman & Managing Director as aforesaid at the transfer, vacation of the office of inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the Contract. Such person shall be entitled to proceed with the reference from the stage at which his predecessor left it. It is also a terms of this Contract that no person other than a person appointed by such Chairman & Managing Director, as aforesaid should act as arbitrator and if for any reason, that is not possible, the matter is not to be referred to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 50,000/-(Rupees Fifty Thousand) and above, the arbitrator shall give reasons for the award. Subject as aforesaid, the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force, shall apply the arbitration proceeding under this clause. It is a term of the Contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under the clause together with the amount for amounts claimed in respect of each such dispute. It is also a term of the Contract that if the Contractor does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation from the Corporation that the bill is ready for acceptance of the Contractor, the claim of the Contractor will be deemed to have been waived and absolutely barred and the company shall be discharged and released of all liabilities under the Contract in respect of these claims. The arbitrator(s) may from time to time with consent of the parties enlarge the time, for making and publishing the award. The decision of the Engineer-in-charge regarding the quantum of reduction as well as justification thereof in respect of rates for substandard work, which may be decided to be accepted, will be final and would not be open to arbitration. The arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties fixing the date of the first hearing. The venue of Arbitration shall be such place as may be fixed by the Arbitrator, in his sole discretion. The award of the Arbitrator shall be final, conclusive and binding all the parties to this Contract.” However, it is not disputed at this stage that the Chairman-cum- Managing Director is ineligible to become an arbitrator in view of the provisions contained in sub section 5 of Section 12 read with the Schedule appended to the Arbitration and Conciliation Act, 1996. It is also not disputed at this stage that the arbitral dispute exists/subsists between the parties. Hence, this Court is inclined to appoint an arbitrator. On the joint consent of both the parties, I, hereby, appoint Justice Dr. Ravi Ranjan, the former Chief Justice of this Court, to act as a Sole Arbitrator, having residential address at 2H/9 Mahatma 3. Gandhi Nagar, Bahadurpur Housing Colony, Kanti Factory Road, Patna, State-Bihar, PIN-800036, to arbitrate the dispute between the parties. The fees and other conditions shall be fixed as per the agreement between parties and the learned Arbitrator. However, the ceiling prescribed under Schedule IV of the Act of 1996 as amended, may be in view. Learned Arbitrator would endeavor to conclude the proceedings expeditiously, also taking into regard the mandate of the Legislature under Section 29-A of the Act of 1996. Let a photocopy of the entire pleadings along with copy of the entire order sheets be sent to the learned Arbitrator by the Registry.
Decision
This application stands disposed of accordingly. Pending application, if any, stands disposed of. Grant urgent certified copy of this order as per Rules. (Sanjaya Kumar Mishra, C.J.) VK