Sr. No.- HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on:20.02.2025. Pronounced on: 27.02.2025 Arb P No. 69/2023 Ashok Kumar Padha, Age 58 years S/O Sh. Prabh Dayal, R/O Ward No.9, adjoining Girls City Middle School, Lambi Gali, Udhampur. …Petitioner(s) Through: Mr. Anil Khajuria, Advocate. Vs. 1. The General Officer Commanding, 71 Sub Area, Patron APS, Dhar Road, Udhampur, C/O 56 APO. 2. The Chairman, 611(I) AD Brigade, C/O 56 APO 3. The Vice Chairman, 104 AD Regt. C/o 56 APO. 4. The Principal, Army Public School, Dhar Road, Udhampur. ...Respondent(s) Through: Mr. Vishal Sharma, DSGI. Arb P No. 70/2023 Ashok Kumar Padha, Age 58 years S/O Sh. Prabh Dayal, R/O Ward No.9, adjoining Girls City Middle School, Lambi Gali, Udhampur. …Petitioner(s) Through: Mr. Anil Khajuria, Advocate. Vs. 1. The General Officer Commanding, 71 Sub Area, Patron APS, Dhar Road, Udhampur, C/O 56 APO. ...Respondent(s) 2 Arb P Nos.69&70/2023 1. As both the two petitions are heard analogously, this court proposes to dispose of these two petitions by a common order. 2. Heard Mr. Anil Khajuria, learned counsel for the petitioner and Mr. Vishal Sharma, learned DSGI for the respondents at length and perused the record in both the petitions. 3. These two petitions have been filed by the petitioner seeking appointment of an independent Arbitrator in both the petitions filed under Section 11(6) of the J&K Arbitration and Conciliation Act, 1996, to resolve the dispute that has arisen between the parties. 4. Brief facts, which lead to the filing of the present petitions, are that in Arb P No. 69/2023, pursuant to the Request for Proposal initiated by the respondent by inviting bids for construction of three class rooms on first floor in existing building with roof trusses on iron colour coated sheets at Army Public School, Dhar Road, Udhampur for the year 2019-20, the respondents invited bids in sealed covers for supply of items listed in part-II of the RFP. The petitioner participated in the bidding process initiated 2. The Chairman, 611(I) AD Brigade, C/O 56 APO 3. The Vice Chairman, 104 AD Regt. C/o 56 APO. 4. The Principal, Army Public School, Dhar Road, Udhampur. Through: Mr. Vishal Sharma, DSGI. CORAM: HON’BLE THE CHIEF JUSTICE ORDER 3 Arb P Nos.69&70/2023 pursuant to RFP and the bids offered by the petitioner was accepted by the respondents after negotiations and due deliberations. The contract was awarded to the petitioner and the same was executed by the petitioner. In the meantime, the respondents pressurized the petitioner to execute the additional work over the above the work which formed part of the contract. Since the petitioner was made to execute the additional work by the respondents, which did not form part of the tender and in the process the petitioner had to spend extra amount for the execution of the contract. The respondents despite receipt of several communications from the petitioner have failed to make payment to the petitioner to the tune of Rs. 7,48,796/- for additional work executed by the petitioner. Consequently, the petitioner was constrained to issue a communication to the respondents dated 28.03.2023 seeking amicable settlement as well as the release of amount of Rs. 7.50 lacs towards the payment on account of additional works executed by the petitioner. It was further requested to the respondents that in case the amount above referred is not paid, the same communication be treated as a notice for appointment of arbitrator and the Arbitration Clause in Para 3 of Part-III (Standard Conditions of RFP) shall stand invoked. The respondents vide communication dated 25.04.2023 conveyed the petitioner that they have discharged their contractual obligation. In the aforesaid backdrop, the petitioner has filed Arb P No. 69/2023 for appointment of sole arbitrator. 5. Facts which lead to filing of Arb P No. 70/2023 are pursuant to the Request for Proposal initiated by the respondents by inviting bids for construction of four class rooms (double storey) and separate washroom for boys and girls at Army Public School, Dhar Road, Udhampur for the year 4 Arb P Nos.69&70/2023 2019-20, the respondents invited bids in sealed covers for supply of items listed in part-II of the RFP. The petitioner participated in the bidding process initiated pursuant to RFP and the bids offered by the petitioner was accepted by the respondents after negotiations and due deliberations. The contract was awarded to the petitioner and the same was executed by the petitioner. In the meantime, the respondents pressurized the petitioner to execute the additional work over the above the work which formed part of the contract. Since the petitioner was made to execute the additional work by the respondents, which did not form part of the tender and in the process the petitioner had to spend extra amount for the execution of the contract. The respondents despite receipt of several communications from the petitioner have failed to make payment to the petitioner to the tune of Rs2,85,000/- payable towards Seismic provisions and have illegally and wrongfully deducted the said amount from the total payment to be made to the petitioner. In essence the respondents have in fact deducted an amount of Rs. 5.70 lacs payable to the petitioner. That in addition to the payment of RS. 5.70 lacs, the respondents are also liable to pay for an additional amount of Rs. 14.00 lacs. Despite the receipt of several representations, the respondents have neither issued completion certificate in favour of petitioner nor have settled the outstanding amount payable to the petitioner on account of Seismic provisions and as well as for additional work executed and also towards the illegally deduced amount of Rs. 2.85 lacs. 6. Consequently, the petitioner was constrained to issue a communication to the respondents dated 29.03.2023 (Annexure-III) seeking the release of amount of Rs. 9.54 lacs in favour of the petitioner. It was 5 Arb P Nos.69&70/2023 further requested to the respondents in the said communication that in case the amount above referred is not paid, the same communication be treated as a notice for appointment of arbitrator and the Arbitration Clause in Para 3 of Part-III (Standard Conditions of RFP) shall stand invoked. In view of no response from the respondents, the petitioner has approached this court by way of filing this petition for appointment of sole arbitrator. 7. It is submitted by the learned counsel for the petitioner that a Clause 3 of Part-III- Standard Conditions of RRP talks of referring the disputes, which cannot be amicably settled, to arbitration. The said clause is reproduced as below: 3... Arbitration. All disputes or differences arising out of or in connection with the contract shall be settled by bilateral discussions. Any dispute, disagreement or question arising out of or relating to the contract or relating to construction or performance, which cannot be settled amicably, may be resolved through arbitration. The standard clause of arbitration is as per Forms DPM-7, DPM-8 and DPM-9 (The same can be downloaded from MoD website). 8. It is stated in the petition that before taking recourse to the appointment of arbitrator, the petitioner had already sought the settlement of the issues inter se parties. But the reluctance of the respondents had constrained the petitioner to issue a notice for appointment of arbitrator and thus after the expiry of 30 days from the date of receipt of the notice, the respondents have not taken any step further to resolve the dispute. Hence the present petitions. 9. It is submitted that an independent arbitrator is required to be appointed in this case as no serving officer of the department is eligible to be 6 Arb P Nos.69&70/2023 so appointed in view of the prohibition contained in Section 12(5) of Arbitration and Conciliation Act, 1996 read with Schedule 7 thereof. 10. In the above backdrop, the petitioner approached this court under Section 11(6) of the Arbitration and Conciliation Act, 1996 for reference of disputes/claims to an independent arbitrator. 11. Mr. Vishal Sharma, learned DSGI appearing for the respondents has filed detailed objections and vehemently resisted the two petitions for appointment of arbitrator. 12. The fact that the petitioner has raised certain claims which, according to the petitioner, have not been addressed by the respondents, this Court is of the view that a dispute exists between the parties, which would require resolution in accordance with the aforementioned Clause 3 of Part-III of Standard Conditions of RFP and this court is of the view that the dispute has to be ultimately decided by an Arbitrator. 13. In view of what has been observed hereinabove, I appoint Mr. Suneet Gupta, retired District & Sessions Judge to act as the sole Arbitrator in both the petitions, who shall adjudicate the disputes between the parties and make an award in accordance with law after hearing the parties and charging the prescribed fee along with incidental expenses to be shared by the parties. 14. Parties may raise their claims and counter claims before the learned Arbitrator. Additionally, all legal contentions, including objections, if any, available to the respondents, are kept open to be taken up before the learned Arbitrator. 15. Registry to inform the Ld. Arbitrator accordingly. 7 Arb P Nos.69&70/2023 16. With the above observation and direction, the petitions stand disposed of. (TASHI RABSTAN) CHIEF JUSTICE JAMMU 27.02.2025 Raj Kumar