HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU … Arb. P No. 12/2024 Rakesh Kumar Gupta Age 44 years Proprietor M/s Gupta Construction Company S/o Sh. Kasturi Lal Gupta, R/o 37/12, Near Punjab National Bank, Akhnoor-181201. Petitioner(s) Through: Mr.Gazal Ashok Arora, Advocate. Vs. 1. Union of India through Secretary, Ministry of Defence And Personnel, North Block, New Delhi. 2. Chief Engineer, Pathankot Zone, Pathankot, Punjab, Commander Works Engineer Head Quarter, Jammu. 3. Garrison Engineer, (Project),Jammu. 4. Directorate of Contract Management Military Engineering Services, Engineering-Chief’s Branch, Integrated HQ of MOD, Army Kashmir House Rajaji Marg, New Delhi- 110011. …..Respondent(s) Through: Mr. Vishal Sharma, DSGI. CORAM: HON’BLE THE ACTING CHIEF JUSTICE 1. This is a petition under Section 11 (6) of the Jammu & Kashmir Arbitration and Conciliation Act 1996 [‘the Act’] seeking reference of the dispute to an independent Arbitrator. 2. The petitioner claims to be a proprietorship concern carrying on the business of construction of roads, buildings etc in the name of M/s Gupta Construction Company. The petitioner claims to have been allotted the contract of construction work of ‘Provision of Children School at Jammu 2 Arb. P No. 12/2024 Cantt’ vide communication dated 01-12-2016. The petitioner submits that he started the execution of the work in terms of the work agreement and carried out the same under the strict control and supervision of the respondents. The petitioner raised his bills from time to time during the currency of the agreement but the same were released only partially. During the currency of the execution of the contract work, as is claimed, the petitioner was also directed to execute additional works beyond the scope of the contract agreement on the assurance that necessary deviation orders would be issued in his favour and payment in respect thereof would be made in time. The petitioner has detailed the works executed by him in para 7 of the petition. It is submitted that the petitioner completed the project and requested the respondents to prepare the final bills for release of the payment but the respondents did not act in the matter which compelled him to issue notice dated 21-06-2023 mentioning the details of the claims for release of payment due to him. Since the respondents did not respond to the communication of the petitioner dated 21-06-2023, as such, the petitioner vide its communication dated 31-07-2023 requested the respondents for appointment of the Arbitrator for adjudication of the dispute that had arisen inter-se the parties. Despite petitioner having approached the respondents many a times, the dispute was not settled by the respondents and, therefore, the instant petition under Section 11 (6) of the Act for appointment of an independent Arbitrator. 3. On being put on notice, the respondents have filed objections. In the objections, the respondents have neither disputed the contract agreement nor the arbitration clause contained therein. The respondents have, however, disputed the claims of the petitioner on merits. 3 Arb. P No. 12/2024 4. Having heard learned counsel for the parties and perused the material on record I am of the considered opinion that the dispute raised by the petitioner in this petition is fully covered under Clause 70 of the General Conditions of Contract. As per Clause 70, all disputes between the parties to the contract are, after written notice by either party to the contract to the other party, referable to the sole Arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. 5. Undisputedly, in the instant case despite written notice issued by the petitioner to the respondents for appointment of an Arbitrator in terms of Clause 70, the respondents have failed to act. The respondents have also not given any good reasons in the reply affidavit as to why the request of the petitioner for appointment of an independent Arbitrator in terms of Clause 70 has not been acceded to. In these circumstances the petitioner is entitled to seek appointment of independent Arbitrator in terms of Section 11 (6) of the Act. 6. Accordingly, the application is allowed and Shri Satish Chander, ADG (Retd), MES, who is empanelled Arbitrator of the respondents, is appointed as Arbitrator to enter upon the reference and make his award, after hearing the parties, in accordance with law. A copy of this order is to be sent to the appointed Arbitrator for information and proceeding further in the matter in accordance with law. (Sanjeev Kumar) ACTING CHIEF JUSTICE JAMMU: 11.04.2025 Anil Raina, Addl. Registrar/Secy Whether the order is reportable: Yes/No