( 2025:HHC:36858 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Arb. Case No.39 of 2025 Date of Decision:- 31.10.2025 M/s Thakur Construction ....Petitioner Versus State of Himachal Pradesh & others ....Respondents Coram The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Whether approved for reporting?1 For the Petitioner : Mr. Ankit Midha, Advocate (through video conferencing) with Mr. Jeevan Kumar, Advocate. For the Respondent : Mr. Rajinder Singh, Additional Advocate General, for respondent No.1. : Mr. Ompal, Advocate, for Mr. Tejasvi Dogra, Advocate, for respondents No.2 to 4. G.S. Sandhawalia, Chief Justice (Oral). The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1966 for appointment of an Arbitrator. 2. Vide notice dated 29.09.2024 (Annexure P-3), the request was made for appointment of the adjudicator by the employer and to resolve the dispute. The proposal of the three technical persons Engineers as such had been made, but no 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 response was received to the same during the filing of the petition. The stand taken is that the respondents had been verifying three critical issues as such and the quantification methodology to the tune of Rs.11.26 Crores which had been claimed. Accordingly, the delay in the appointing an Adjudicator has been explained. In sum and substance, the resolution by way of arbitration as such was not denied. 3. During the course of hearing, on the last date, it transpired that the termination of the Contract had already been done in the month of August/September, 2025, which was not on record, therefore the proceedings had been deferred. Today, the order dated 27.08.2025 as such has been placed on record by the petitioner, whereby the Additional General Manager, Sewerage Division, SJPNL U.S. Club Shimla-1, while exercising power under Clause-68 of the Contract has forfieted the Security/bid in accordance with clause 12.6 of the agreement and also Performance Guarantee amouting to Rs.49,62,300/- due to poor performance of work and in context of failure to complete/initiate the said work. On 26.09.2025, the necessary request to the Manager, Punjab National Bank, Branch Office Una District Una, Himachal Pradesh was also made for encashment of the Bank Guarantee. 3 4. Counsel for the petitioner has further pointed out that regarding Clause 8.4.4, whereby the Dispute Resolution Process has been mentioned, if the Initial Contract Price is more than 5 Crore, the Tribunal shall consist of a three-Member Arbitral Tribunal. The said clause reads as under:- “8.4.4 Where the Initial Contract Price as mentioned in the Letter of Acceptance is more than 5 Crore, the Arbitration, invoked in terms of Clause 65 shall be conducted in accordance with the following procedure:- a) In case of a decision of the Adjudicator in a Dispute or difference arising between the Employer and a Bidder relating to any matter arising out of or connected with this Agreement, such disputes or differences shall be settled in accordance with the Arbitration and Conciliation Act, 1996 and the matter will be referred to an Arbitral Tribunal. The Arbitral Tribunal shall consist of three Arbitrators, one each to be appointed by the Employer and the Bidder. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the parties and shall act as presiding Arbitrator. b) Where the Initial Contract Price as mentioned in the Letter of Acceptance is 5 Crore and below, and Arbitration is invoked in terms of Clause 65, the matter will be referred to a sole Arbitrator. c) The fee of the Adjudicator and Arbitrator will be borne by the Employer and the bidder as per practice in vogue or otherwise specified by the Arbitrator in case of Arbitration. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its proceedings as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself. The decision of the majority of arbitrators shall be final and binding upon both parties.” 4 5. Keeping in view the above, once the party had consented as such to resolve the dispute by way of Arbitration, this Court is of the considered opinion that the matter should have to be resolved by way of arbitration. 6. Resultantly, the present petition is allowed and the following Three-Member Arbitral Tribunal is appointed to adjudicate the dispute between the parties:- (i) Hon’ble Ms. Justice Sabina, former Acting Chief Justice, House No.1842, Sector 34-D, Chandigarh (Contact No.9780008138) (e-mail Id: justicesabina@gmail.com) as Presiding Arbitrator. (ii) Hon’ble Mr. Sudhir Kumar Katriar, former Judge, Flat No.101, 4th Floor, Tower No.12, Supreme Enclave, Mayur Vihar, Phase-I, Delhi-110091 (Contact No.08527937916 and 09471419196) (e-mail Id: sudhirkatriar@ gmail.com), Member. (iii) Sh. D.P. Bajaj, Former Chief Engineer, Punjab (PWD B&R), House No.311, Sector-7, Panchkula-134109 (Contact No.9815187311) (e-mail Id: bajajdp@yahoo.com), Member. 7. Only after their disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, their appointment, as Arbitrators, shall come into force. 8. On their giving consent to arbitrate the dispute between the parties as Arbitrators, the above said Arbitrators, 5 shall enter into reference, and shall pass an award in accordance with law. 9. Copy of this order be furnished to the learned counsel for the parties and also be furnished to the learned Arbitrators. The learned Arbitrators so appointed shall be entitled to fee as per stipulation contained in 4th Schedule appended to the Arbitration and Conciliation Act, 1996. 10. Accordingly, the application is disposed off alongwith pending miscellaneous application(s), if any. (G.S. Sandhawalia) Chief Justice 31st October, 2025 (munish thakur)