The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ARBP No.19 of 2025 ASR Engineering & Project Limited …. Petitioner Represented by Adv.– Mr. A.P. Bose, Advocate -versus- NALCO and another …. Opposite Parties
Legal Reasoning
Mr. Tanmay Mishra, Advocate CORAM: HON’ BLE THE CHIEF JUSTICE Order No.
Decision
ORDER 18.07.2025 03. 1. This is an application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 at the behest of the petitioner for appointment of an arbitrator in terms of the arbitration Clause-87 of the General Conditions of Contract which forms integral part of the main contract. 2. The dispute relates to a contract entered into between the parties for construction of “2nd Raw Water Intake Pump House and Pipeline Project” and a purchase order in this regard was issued contemplating that the said work shall be completed within eighteen months from the date of the commencement thereof. Page 1 of 6 2.1 It is averred that though the standard procedure postulates the continued execution of the work, but the opposite parties issued a direction to execute the work in two phases, first of which shall cover 10kms upto the old intake well and the second was beyond the same to a zero point. It is further averred that Clause-7.2 of the tender conditions indicates that the pipeline ROU shall be provided by the opposite parties and after obtaining the said ROU, the petitioner’s liaison and coordination responsibility involves the persuasion of the available files in the Irrigation Department. 2.2 According to the petitioner, after observing all the formalities as required in the said agreement, the petitioner proceeded on the basis of the terms and conditions embodied therein. Yet there was some reluctance on the part of the opposite parties in not acting in terms thereof. 3. The opposite parties, however, denies the allegations made against them and did not agree to the statements and/or claim made by the petitioner which invites a dispute having cropped up between the parties. Page 2 of 6 4. Clause-87 of the said contract postulates that in the event any dispute or differences cropped up between the parties touching upon the work or the execution or the maintenance thereof or in relation to a contract, the same shall be referred to a sole arbitrator to be appointed by the appointing authority. The said Clause is reproduced as under: “87. Arbitration: thereof of the works or this contract or All disputes or differences whatsoever which shall at any time arise between the parties hereto touching or concerning the execution or maintenance thereof of the contract or the rights touching or concerning the works or the execution or maintenance the construction meaning operation or effect thereof or to the rights or liabilities of the parties or arising out of or in relation thereto whether during or after completion of the contract or whether before or after determination, foreclosure or breach of the contract (other than those in respect of which the decision of any person is by the contract expressed to be final and binding shall after written notice by either party to the contract to the other of them and to the Appointing Authority hereinafter mentioned be referred for adjudication to a sole Arbitrator to be appointed as hereinafter provided. For the purpose of appointing the sole Arbitrator referred to above, the Appointing Authority will send within thirty days of receipt of the notice, to the contractor a panel of three names of persons. The contractor shall on receipt of the names as referred selected any one of the person names to be Page 3 of 6 appointed as a sole Arbitrator and communicate his name to the Appointing Authority within thirty days of receipt of the names. The appointing Authority shall there upon without any delay appoint the said person as the sole Arbitrator. If the contractor fails to communicate such selection as provided above within the period specified, the Appointing Authority shall make the selection and appoint the selected person as the sole Arbitrator. If the Arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacate his office due to any reason whatsoever sole Arbitrators shall be appointed as aforesaid. The work under the the contract arbitration proceedings. shall, however continue during The Arbitrator shall be deemed to have entered on the reference on the date he issues notices to both the parties fixing the date of the first hearing. The Arbitrator may, from time to time, with the consent of the parties, enlarge the time for making and publishing the award. The Arbitrator shall give a separate award in respect of each dispute or difference and shall give a reasoned and speaking award/ awards. The venue of arbitration shall be at Bhubaneswar. However, if the situation so warrants, it may, as and when required, be held at the place where the site of work is situated. The fees, if any, of the Arbitrator shall, if required to be paid before the award is made and published be paid half and half by each of the parties. The costs of the reference and of the award including the fees, if any of the Arbitrator shall be in the discretion of the Arbitrator who may direct to and by whom and in Page 4 of 6 what manner, such costs or any part thereof shall be paid may fix or settle the amount of costs to be so paid. The award of the arbitrator shall be final and binding on both the parties. Subject to aforesaid, the provisions of the Arbitration Act 1940 or any statutory modification or re- enactment thereof and the rules made thereunder, and for the time being in force shall apply to the arbitration proceeding under this clause. For Public Sector Enterprises guidelines as per the circular of BPE No. 15/9/86-BPE (FIN) dated 30.03.89 as amended time to time will be followed.” 5. A notice indicating the dispute having arisen between the parties was served upon the opposite parties, but there is no consensus on the appointment of an arbitrator which invites the jurisdiction of this Court to be exercised. The records would reveal that the dispute raised by the petitioner is amenable to be adjudicated through an arbitral tribunal and, therefore, we find that it is a fit case where the parties should be referred to arbitration. 6. This Court, therefore, appoints Mr. Justice Biswanath Rath (Retd.) of this Court as a sole Arbitrator, who shall enter reference immediately upon communication of the instant order and adjudicate the dispute cropped up between the parties. The Page 5 of 6 arbitration shall take place under the aegis of the High Court of Orissa Arbitration Centre. Remuneration of the Arbitrator shall be equally paid by the parties as per the 4th Schedule appended to the said Act. The Arbitrator shall make efforts to adhere the time limit set forth in Section 29A of the said Act. 7. This arbitration petition is thus disposed of. Chief Justice (Harish Tandon) S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jul-2025 12:48:56 Page 6 of 6