Sr. No. 7 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR (through videoconferencing) Arb P No. 41/2024 Reserved on: 06.02.2025 Pronounced on: 13.02.2025 M/s Triveni Constructions Engineers, Planners and Contractors, Through its partner Amit Anand, Age 50 years S/O Sh. Sant Swaroop Anand, R/O College Road, Pathankot, Punjab-145001. …Petitioner(s)/ Through: Mr. F. A. Natnoo, Advocate Vs. 1. Union of India (U.O.I) through its Secretary to Government, Ministry of Defence, Raksha Bhawan, New Delhi-110001. 2. General Officer in Command( GOC) 15 Core, Srinagar, (J&K). 3. 31 Sub Area, Commander C/O 56 APO 4. Commanding Officer 5231 ASC BN(MT) Khunmoh Srinagar Jammu & Kashmir Pin Code-191104 ...Respondent(s) Through: Mr. T. M. Shamshi, DSGI with Ms. Rehana Qayoom, Advocate CORAM: HON’BLE THE CHIEF JUSTICE O R D E R 1. Heard Mr. F. A. Natnoo, learned counsel for the petitioner who addressed his arguments through videoconferencing and Mr. T. M. Shamshi, learned DSGI, assisted by Ms. Rehana Qayoom, Advocate for the respondents at length and perused the record. 2 Arb P No.41/2024. 2. The present petition has been filed by the petitioner seeking appointment of an Arbitrator under Section 11 of the J&K Arbitration and Conciliation Act, 1996, to resolve the dispute that has arisen between the parties. 3. Brief facts, which lead to the filing of the present petition, are that the petitioner firm is a contractor duly registered contractor with MES Department. That in response to the tender floated by the respondents, the petitioner herein being eligible in all respects had responded and was declared as successful bidder and accordingly vide contract agreement bearing CA No.GEMC-511687723930578 OUTSOURCING OF TRADESMAN JOB OF COOKING (ON SHIFT DUTY), SWEEPING AND WASHERMAN FROM MAJOR HEAD 2076, MINOR HEAD 800 CODE HEAD 599/07 AT ‘R’ CENTRE SRINAGAR, ‘R’ CENTRE OLD AIR FIELD & ‘R’ CENTRE SONAMARG RUNNING BY 5231 ASC BN(MT) for the period 2023-24 was allotted the contract. In the process, the respondents have started creating obstructions in the performance of the contract in as much as contrary to the provisions of the contract and in breach thereof have withhold the payments of bills due and even the rates applicable for various categories of workers as notified by Government of India were not allowed thus a clear breach to the contract agreement and the dispute has thus arisen. 4. The petitioner herein faced with the aforesaid situation has thus vide detailed legal notice dated 19.02.2024 and also communication/notice dated 25.05.2024 sought resolution of the dispute and invoking of Clauses 16.1 (Conciliation) and 16.2 (arbitration) of the agreement. 3 Arb P No.41/2024. 5. That thereafter, in reference to the aforesaid communications/notices the respondents have by virtue of letters dated 08.06.2024 and 11.06.2024 intimated the date and time of meeting of dispute resolution committee which was accordingly held on 22.06.2024 but the said dispute resolution committee has not been able to resolve the matter despite lapse of reasonable period of more than now two months. It is submitted that the petitioner after waiting for a considerable period has vide letter/notice dated 24.07.2024, requested for outcome of the said meeting and further made clear about further steps to be taken by the petitioner in furtherance of clause 16.1 and 16.2 of the agreement. It is thus submitted that in absence of any nominated and appointed sole independent arbitrator the petitioner has been left with no alternate but to approach this court for invoking the jurisdiction of this court under Section 11 of Arbitration and Conciliation Act, 1996 for seeking appointment of an independent arbitrator. 6. It is stated in the petition that the parties to the contract agreement are governed by the General terms and conditions of Contract. The clause 16.1 of the General terms and conditions of Contract provides conciliation and Clause 16.2 provides for arbitration, which for the sake of reference are reproduced hereinbelow. “16.1. Conciliation. i. The Parties (i.e. the Buyer and the Seller/Service Provider) undertake that any conflict or dispute that may arise between them shall first be dealt with in the manner stated below, irrespective of any other recourse, which any Party may have in law or in equity. ii.In the event of any conflict or dispute arising out of or in connection with the Contract placed through GeM, the Parties shall endeavor to settle such disputes amicably. If a dispute is not resolved within 30 (thirty) days after a written notice of any dispute by one Party to the other the same shall then be resolved through the mechanism of a Dispute Resolution Committee. This Dispute Resolution Committee shall comprise of representatives of both the Buyer and the Seller/Service Provider and shall be 4 Arb P No.41/2024. chaired by the Primary User of the Buyer organization/department or any other person as authorized by the Primary User. If the Dispute Resolution Committee is not able to resolve the matter within 30 (thirty) days of its formation, the dispute shall then be referred to Arbitration. 16.2 Arbitration. In the event of any conflict/dispute arising out of or in connection with the Contract placed through GeM, which has not been resolved in accordance with the procedural laid down in Clause 16.1 above, the aggrieved Party may invoke Arbitration by sending a written notice to the other Party. The procedure for appointment of the Arbitral Tribunal shall be as follows. i. In cases where the total value of the Contract is less than INR 1,00,00,000/- (Indian Rupees One Crore only) the same shall be referred to a sole arbitrator mutually appointed by both the Parties. ii. When the total value of the Contract exceeds INR 1,00,00,000/- (Indian Rupees One Crore only), the arbitration shall be conducted by a quorum of three arbitrators. Each party shall be entitled to appoint an arbitrator and the two party-appointed arbitrators shall within 30 (thirty) days from their nomination, appoint a third arbitrator i.e. the Presiding Arbitrator. iii. In case of failure to appoint the Presiding Arbitrator within a period of 30 (thirty) days from the date of nomination of the two arbitrators by the respective parties, the aggrieved party shall approach the High Court (under whose jurisdiction the principal place of business of the Buyer department/organization is located) to appoint the Presiding Arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996, (as amended up to date). iv. The arbitration shall be conducted in the English language. Arbitration proceedings can also be conducted online, as per the discretion of the Arbitral Tribunal. v. The cost of the Arbitration shall be equally borne by both the Parties. vi. The award of the arbitrator shall be final and binding on the Parties to the Contract. The arbitration shall be governed by the Arbitration and Conciliation Act, 1996, as amended from time to time. The seat of arbitration shall be at the place where the principal place of business of the Buyer department/organization is located. vii. The Contract shall be interpreted and governed in all respects in accordance with the laws of India. All dispute in connection with or arising out of the Contract, shall be subject to the exclusive jurisdiction of the Court within the local limits of whose jurisdiction principal place of business of the Buyer department/organization is located.” 7. 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. 5 Arb P No.41/2024. 8. Mr. T.M. Shamshi, learned DSGI appearing for the respondents has resisted the application for appointment of arbitrator. 9. Objections stand filed on behalf of the respondents. 10. 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 Clauses 16.1 and 16.2 of the General Conditions of Contract and the dispute has to be ultimately decided by an Arbitrator. 11. Accordingly, the present petition is disposed of by appointing Mr. Faheem Nissar Shah, Advocate, High Court of Jammu & Kashmir and Ladakh, to act as the sole Arbitrator, who shall proceed in the matter to decide the dispute 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. 12. Parties may raise their claims and counter claims before the Arbitrator. 13. Registry to inform the Ld. Arbitrator accordingly. 14. With the above observation and direction, the petition stands disposed of. (TASHI RABSTAN) CHIEF JUSTICE JAMMU 13.02.2025 Raj Kumar