1 2025:CGHC:14130 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 17 of 2024 M/s Aulia Infrastructure, having its ofÏce at New Dhamtari Road, Near Shadani Darbaar, Village – Mana, Raipur, (C.G.) Through its proprietor Md. Shahid Navaz, S/o- Md. Shah Navaz, Aged about 37 years, R/o- Navaz Residency, Near Bijali OfÏce, Gudhiyari, Raipur- 492001 (C.G.) ... Applicant versus M/s G.S. Express Pvt. Ltd. Through Its Managing Director Mr. Sandeep Anand Having Its Registered OfÏce At - C877, Opp RTO OfÏce, Mahanagar, Lucknow - 226006, (U.P.), and Local OfÏce At D-49, Vallabh Nagar, Pachpedinaka, Raipur, 492001, Chhattisgarh. ... Respondent(s) For Applicant : Mr. Gary Mukhopadhayay, Advocate. For Respondent : None Hon’ble Mr. Ramesh Sinha, Chief Justice Order on Board 24.03.2025 1. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. 2. The facts, in brief, as projected by the applicant are that the applicant is a proprietorship firm and is regularly and actively engaged in the business of construction works for various governmental/non-governmental tenders and projects. Mr. Shahid Navaz is the proprietor and authorized signatory of the PREETI KUMARI Digitally signed by PREETI KUMARI 2 applicant. The respondent company is a construction company, engaged in construction business of various Government and other projects and is represented by its Managing Director Mr. Sandeep Anand. vide agreement no. 31/DL 17-18 dated 09.08.2014 (Tender no -18322), the respondent was awarded with the work of construction of Railway Underbridge at Fafadih, Raipur at KM RSD 176-177 (1.036) from the Public Work Department. The respondent executed Memorandum of Understanding, registered and dated 05.02.2021 in favour of the Applicant ("MOU"), thereby awarding the execution of the balance construction works for Railway Under-Bridge at Fafadih, Raipur at KM RSD 176-177 (1.036) ("Site") on Sub-contract basis in connection with the Respondent's Agreement No. 31/DL 17-18 dated 09.08.2014, Tender No. 18322 with Public Works Department ("PWD"), for a total Value of Rs. 25,40,00,000 (Rupees Twenty Five Crores Forty Lacs Only). 3. Mr. Gary Mukhopadhayay, learned counsel for the applicant submits that the applicant had sincerely executed the work allotted in respect of the Project Site in terms of the MOU and on the basis of instructions issued to by the respondent from time to time. As per the Clause 5 of the MOU, the respondent i.e. GSEPL had the obligation to obtain time extensions from PWD, at which they have failed to obtain promptly on such instances, which has severely hampered the work progress to be carried out by the applicant and thereby also resulting in huge infrastructure costs on account of staff salaries, labour payments, idle charges of the machinery etc. occurred to the Applicant. In respect of the construction work carried out by the Applicant on the site, they had dumped several materials on the site, the ownership of which belonged to the applicant. These materials amounting to Rs. 26,50,000 were illegally lifted by the Respondent from the Project Site, belonging to and the property of the Applicant, in respect of which the 3 Respondent is liable to pay compensation to the Applicant to the tune of Rs. 26,50,000. 4. Mr. Mukhopadhya further submits that applicant had, on several occasions through numerous representations, reminders, phone calls, messages and mails including the e-mails dated 08.06.2021, 27.07.2022, 02.11.2022 and 28.01.2023 called upon the respondent to release their outstanding dues, however the respondent deliberately and malafidely failed to address the same. The applicant had also made several requests to clear the hindrances at the Project Site, so that, the works on the Site could be executed on time; however, the respondent purposefully turned a blind eye to the same. The respondent have caused wrongful and unlawful loss to the applicant and have taken wrongful and unlawful gain for itself. Therefore, the respondent company has committed the act of cheating, fraud, and deception with the applicant's company and are in serious breach of the fundamental terms of Contract between the parties i.e. the MOU dated 05.02.2021. In aggregate, the respondent is liable to pay to the applicant an amount of Rs. 4,71,92,111 alongwith interest @ 18% per annum from the due date till the actual realization of the said amount from the respondent to the Applicant. 5. He further submits that failing several measures for the recovery of said amount, the applicant issued a Legal-cum Demand Notice dated 28.04.2023 to the respondent. In which, the applicant invoked the negotiations clause (via written notice) in terms of Clause 12 (a) and (b) i.e. "12. Settlement of Dispute" mechanism prescribed under the MOU dated 05.02.2021 signed between the parties and thereby requesting the Respondent to cure the breach and release the payment of Rs. 4,71,92,111 alongwith interest @ 18% per annum from the due date till the actual realization of the said amount, within 30 days of receipt of the notice. After 4 the notice also various deliberations took place between the applicant and the respondent, in which the respondent extended its assurance to settle the dispute, however, despite the same, the respondent did not take any further actions to settle the dispute or to release the payments of the amounts owed to the applicant and from which it was apparent that the respondent had no intention to compensate for the loss caused to the applicant and they deliberately kept delaying the matter on one pretext or other. 6. Vide order dated 02.07.2024, this Court had directed for issuance of notice to the respondent. The matter was thereafter listed on 04.11.2024 when it was found that the notice issued to the respondent was still awaited, the petitioner was permitted to serve notice through paper publication in any leading newspapers which had large circulation over both the places of registered ofÏces of the respondent i.e. in Lucknow and Raipur. On 03.02.2025, it was submitted by learned counsel for the applicant that on 04.11.2024, the paper publication was ordered by this Court, but the same could not be done, and he prayed for fresh paper publication. Thereafter, paper publication was made. Today, when the matter is taken up, none appears nor is any representation made of behalf of the respondent. 7. An afÏdavit has been filed by the applicant annexing therewith copy of paper publication of the notice and from perusal of the same, it is evident that paper publication has been made in two leading newspapers having wide circulation over Lucknow and Raipur, where the ofÏce of the respondent is situated, thus, it is presumed that service of notice is complete. Despite having being served, the respondent has not appeared nor is there any opposition to the arbitration request, and further having regard to the fact that Clause 12(c) of the Memorandum of Understanding dated 05.02.2021 provides for the mechanism for resolution of the dispute through arbitration, this Court deems it appropriate to appoint any retired District Judge as 5 Arbitrator. 8. For ready reference Clause 12(c) of the MoU dated 05.02.2021 is quoted as under: “If such disputes or claim is not resolved through discussion within 15 days from the date of serving notice under the condition stipulated above, then such disputes shall be transferred to binding Arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as mentioned from time to time. For the purpose of such Arbitration, both parties shall appoint a Sole Arbitrator who shall constitute the ‘Arbitration Tribunal’. All Arbitration proceedings shall be conducted in English language and the place of Arbitration shall be Raipur, Chhattisgarh. The Arbitration Tribunal shall decide any such dispute or claim strictly in accordance with the governing law specified in the present Memorandum of Understanding (MoU). The final judgment acceptable of the award and an order of enforcement, as the case may be.” 9. A query was put to learned counsel appearing for the applicant as to who may be appointed as Arbitrator for resolving the dispute existing between the parties, Mr. Mukhopadhayay submits that Mr. N.D.Tigala, who is a retired District Judge may be appointed as Arbitrator. 10. In view of the above facts situation of the case, this Court deems it appropriate to appoint Mr. N.D.Tigala, a retired District Judge 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 Mr. N.D.Tigala 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