Court No. - 59
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 30 of 2019 Applicant :- M/S Arvind Kumar Mishra Opposite Party :- M.B. Suresh And Another Counsel for Applicant :- Prakash Chandra Pathak Counsel for Opposite Party :- Raj Kumar Mishra
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Prakash Chandra Pathak, learned counsel for the applicant and Sri Raj Kumar Mishra, learned counsel for the opposite parties.
2. The present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), seeking appointment of an arbitrator for resolution of disputes that are claimed to be existing between the parties arising from work order dated 18.08.2016 awarded to the applicant by the opposite parties.
3. For the purposes of the present application, heavy reliance has been placed on clause 26 of the said work order. It reads as below:
"All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be settled. All such disputes or differences shall in the first place be referred by the Agency to GPL in writing, for resolving the same through mutual discussions, negotiations, deliberation etc. associating representatives from both the sides and concerted efforts shall be made for reaching amicable settlement of disputes or differences.
In the event of failure to resolve any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by GPL of any certificate to which the Agency may claim to be entitled to, through mutual settlement, the Agency may refer such matters to the Managing Director of GPL in writing within 60 days from the date of failure of amicable settlement of such disputes or differences for settlement through Conciliation. If the efforts to resolve all or any of the disputes through Conciliation fail, further shall be settled in the Court of Law at Hyderabad jurisdiction. No disputes or differences shall be referred to Court after expiry of 60 days from the date of notification of the failure of Conciliation"
4. In such circumstances, a preliminary objection has been raised by the opposite parties as to maintainability of the present application. According to him, there does not exist any arbitration clause and therefore, the present application is not maintainable.
5. Learned counsel for the applicant submits that earlier, the applicant had filed a Writ - C No.30584 of 2018, which was dismissed with the following observation:
"The submission of Sri Mehrotra, has force and since the contract of the petitioners is with a private respondent, we are of the view that the writ petition is not maintainable and the remedy of the petitioners is either by way of a civil suit or arbitration.
The Writ Petition is accordingly dismissed."
6. Relying on clause 26 of the work order and the observation made by the Division Bench of this Court allowing the applicant to seek redressal of his grievance either by filing a civil suit or pursuing arbitration proceedings, he would submit that clearly the dispute between the parties is arbitral and therefore, the present application is wholly maintainable.
7. He has also tried to refer to the earlier orders passed in the present proceedings to suggest that the present application has been entertained in view of clause 26 of the work order and therefore, the preliminary objection that had been raised at that stage had already been rejected.
8. Having heard learned counsel for the parties and having perused the record, in the first place, there is no order in the present proceedings holding the application to be maintainable. Though reference has been made to the clause 26 of work order in the order dated 04.04.2019, it does not in any case show that a preliminary objection has been raised at that stage or adjudication had been made by this Court in that regard.
9. Then, insofar as clause 26 of the work order is concerned, it only provides for settlement of disputes in the manner provided therein. In the first place, all disputes and differences arising from the work order were required to be placed before the opposite parties for resolution through mutual discussions, negotiations and deliberations etc. In the event of failure of such settlement being reached, conciliation proceedings were contemplated in the later part of clause 26 of the work order. However, in the event of failure of conciliation proceedings, the only recourse left to the parties was to approach the Court falling in Hyderabad jurisdiction. In this regard, it is undisputed that the registered office of company-Gayatri Projects Ltd. is at Hyderabad.
10. In absence of any agreement between the parties, for resolution of dispute through arbitration, clearly, the arbitration agreement is not shown to be in existence.
11. Accordingly, the preliminary objection is sustained and the present application is found to be not maintainable. The mere observation made in the order passed by a Division Bench of this Court, leaving it open to the applicant to approach the civil court or seek arbitration neither created an arbitration clause between the parties nor created jurisdiction in this Court under Section 11 of the Act.
12. The present application is accordingly dismissed.
Order Date :- 26.8.2019 Abhilash