Allowed

Orient Enterprises v. Bharat Aluminum Co.Ltd

Chhattisgarh HC8 Feb 2010ARBA/39/2007

Case brief

AI extract

What is this about?

On an application under Section 11 of the Arbitration and Conciliation Act, 1996, the court appointed an arbitrator to resolve a dispute over unpaid deductions in a service order contract, holding that an arbitration clause existed via incorporation by reference and a dispute persisted.

What did the court decide?

Appointed former Judge V.K. Shrivastava as sole arbitrator to resolve the dispute regarding unpaid deductions.

Orient Enterprises Vs Bharat Aluminum Co.Ltd — Arbitration | Chhattisgarh HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BILASPUR gC .G l

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ABITRAfrION APPLICATION No. y /07

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w ‘

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APPLICANT Orient Enterprises, Engineer, 85 Contractor j @ W .. E/32, Madhu Sudan Market, M.^“‘33 w Raulkela, 1. / ?r6$€5§‘“ <sup>k”9 MW RESPONDENT : Bharat Alluminium Co. Ltd.

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Bharat Alluminium Co. Ltd. Through General manager (MM) Alumina Plant, Welfare Building, Balco Nagar, Korba.(C.G.)

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APPLICATION TINDER SECTION 1 1 [6l OF THE ARBRITATION ANDaxCONCILIATION ACT 1996 FOR THE APPOINTMENT OF x“ ARBITRATOR

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p...

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' 9 $

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HEGH CQUR’E‘ 9F CEIHANISG$RH AT BELASPUR Am A. Ne. 39 OF 2007

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.f,

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3%PPLECAKT Orient Entaprises

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Versas

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RE$PO§$DEE€T Bharat Aluminum COV Ltd.

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SIEKELE BEN'CH:—^Lion.Shri NK‘^fKgaxwa},J

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?§E$ENT :~ Smt. Renu Kochar, Adv.^{fortheapplicant.} Shri Bhaskar Payasi, Adv.^{for1:116respandmlt.}

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‘ ,é‘

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WA . Th6 appiicarit has pmferred^{ibisapplicaiionunderSactien} 1K6} of the Arbitration^{andConciliationAct,} i996 (briefly, ‘the Act’} for appointment^{ofarbitrator.}

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{D\ 1% per applicant, the^{non—appEicantissuedselviceorderon} 5—6-2006 for “Repiacement of Cones for Bail Miii No. 1" izalued at RS.⁴ 17,000/^- in favour^{of theappiioant.}

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1% per applicant, the^{non—appEicantissuedselviceorderon}

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CO As per the tei‘ino^{oftheagreement,theappiicantdelivered} material to the non—appiicant within stipulated time and submitteti tirSt/final bii €01“ the aforesaid work for an amount of RS 4,17,900/—, but the non—applicant^released only Rs. 2,63,907j— on 23—9~2006. The applicant then requeeted the non—applicant^to provide^{detailsofdeduction} made in the said payment,^{butthenonapplieanthas} paid no heed to the request^{madebytheapplicant.}

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4-. The general eonditione of contract between the applicant and noneappiieant^{containsarbitrationClauseas} per^clause 92 of the General Terms^and Conditions of the Contract iiihich is a part of the^work order. The applicant made^a request to the non-applicant Vide letter reference No. OEfRKL/OEv—(W/lt) dated 1—12—2006 for appointment of ar’oitrator for resolving the dispute pertaining to the aibreeaitl unpaid clueo lying with the applicant. The said request letter was^{receivedbythenon-applicant,eventhen,} arbitrator has not^{beenappointed.}

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01 . the non-applicant by fiiing his reply has denied the g9

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€XiSt€nc€ of arbitraticn Clause as W€11 as c‘iispute betwe€n €116 partias emd prayed for dismiSsal of the appEication.

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0’s . Stat. Renu Kochar, learned connsei for the applicant would cagiald that as pm" terms and conditions melltiormd in Ammxura A-i, th€ General 331d Special Conditions of Coxm‘act prevailmg at Balco shall be applicable fer the work and the General Conditioas of Contract prevamag in Balco contams arbiEration dause and, therefore, it caimot be‘ said, that the metapi contract does not centain arbitration c1ause. She would further contend that the applicant has got yeceived the aforesaic‘uamomlt of fmal bill in full alld fmal satisfaction of the claim and the reply of the 11011applicant that the applicant has received thefmal bill in full and fmal satisfaction is not correct and, therefore, it camlot be Said that^‘ihere is no cliepute between the parties to he referred to arbitrator.

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J‘ . Per contra, Shri Bhaskar Payasi, learned counsel appearing for me hoe-applicaht woula submit that although the General Conclitions of Contract prevailing in Balco is applicable m contracts with the Balco which also contains arhitration'elause but arbitration clause as annexed by the applicant in their applicant is of diiferent contract and in respect of ciiii‘erent party named Karmjeet Singh and Company and theretore, the said arbitration clause cannot he referred in the instant matter. He would further contend that since the applicant has received the amount oi‘ bill in their full and final satisfaction, therefore there is no dispute between the parties so as to refer the matter to arbitrator.

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. l have heard learned counsel for the parties and perused the record

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.in the instant case, following questions fall for determination of the case:— \ ‘ Whether there is an arbitration clause ?

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ii. whether there is a dispute between the parties so as to refer the matter to arbitrator '2’

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Indisputably, as per the service ord€r^Annexura P—l,’ G€nera1 Conditions^ofContract pmvajling^{atBalcoshal}b6} applicable^{forthework‘ItisaisonotindisputethatGaneral} Conditions of Contract pifevajling at Balco axid alsc applicable^{intheinstactcasecontainsarbitrationclauseas} Clause No. 9.2.3. A bare^{readingofthearbitrationclause} along with Clause 2 of Special Conditions of Contract mentioned^{inserviceorderAnnexureA—l,wouldrevealthat} there is^{aspecialreferenceindicatingamutualintentionto} incorporate the arbitration^{clausefromanotherdocument} into the contract.^As per^{thesaidclause,} the General^and Special^{ConditionsofContract} prevailing^atBalco shall be applicable for the work. The said general conditions of contract contains arbitration clause The said general conditions^{ofcontractshallbedeemedtobeincorporatedby} reference in the service order Annexure P—i including arbitration clause Therefore, the objection taken by the non—applicant that the agreement does not contain arbitration^{clauseissansmerit.}

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l 1. So far as other^{objectionisconcerned,nomaterialhas} been produced^byeither party^{tosuggestWhetherornotthe} amount^{of finalbillhasbeenreceivedbytheapplicantinfull} bill and therefore,^the

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and final^{satisfactionofhisclaim} / ground^{raisedisalsomeritless.FurtherWhetherornotthe} amount^{of finalbillhasbeenreceiVedbytheapplicantinfull} and final^{satisfactionofhisclaimisitselfadisputewhichis} to be decided by the arbitrator in the facts and l see no^meritinthe

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circumstances^{ofthecase.Therefore,} objections of the non—applicant regarding noninaintainability^ofthe petition.

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l2. Considering^thatthe parties to the proceedings^had entered into a contract^which contains arbitration^clause and further^{consideringthatthenon—applicanthasl‘ailedto} act on the request of the applicant for appointment of arbitrator^{andalsoconsideringthatthedisputehadarisen} out of the^{contractagreement,thisCourtisoftheopinion} that a case^{forappointmentofarbitrationismadeout.}

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Learned counse1 for the parties submit that th€y have no objection if Hon’me Shri Justice V.K. Shrivastava, former Judge of High Court of Chhattisgayh is appointed as Arbitrator in the present case.

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Therefore, I hereby, With the consent of the parties, appoint Hori’ble Shri Justice V.K.Shrivastava, former Judge of High Court of Chhattisgarh at Bilaspur, sole arbitrator, for which as per Shri Payasi, Hon’bie Shri Justice VK. Shrivastava has aiready accorded his consent.

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The Hon’bie Arbitrator may settle his terms and conditions and remuneration.

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Registry to intimates Hon’ble Shri Justice V.K. Shrivastava, former Judge of High Court of C.G. Bilaspur,

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about his appointment as Arbitrator and to send all the papers^{aiongwithaddressof the} parties.

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Parties are aiso directed to approach Hon’bie Shri Justice V.K.Shirvastava, who is presently residing at Mridu Vina, beside Uday Children Hospital, Vidhik Sewa Marg (01d Warehouse Road}, Biiaspur and to submit papers and to take part in arbitration proceedings.

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Arbitration applicant is accordingly disposed of.

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Sd/N.K.Agarwal Judge

Orient Enterprises v. Bharat Aluminum Co.Ltd

Case brief

What is this about?

What did the court decide?

Orient Enterprises v. Bharat Aluminum Co.Ltd

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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