Disposed¶13

M/S Striker and Brothers v. the State of Hp and Another

Himachal Pradesh HC10 Apr 2024ARB.C/621/2023

Case brief

AI extract

What is this about?

Section 11(6) Arbitration and Conciliation Act 1996; appointment of arbitrator; settlement dated 27.08.2021; Departmental Litigation Monitoring Committee; non-payment of settlement amounts; unilateral withdrawal of undertaking dated 08.11.2021; Section 11(8) disclosure; Fourth Schedule fees; M/s Striker & Brothers v. State of H.P.; Himachal Pradesh High Court; Arb. Case No. 621 of 2023; decision 10.04.2024.

What did the court decide?

Application disposed of with appointment of Shri Rajiv Sharma, former Judge of the Court, as Arbitrator, subject to his written disclosure under Section 11(8) of the Act and consent; the Arbitrator is entitled to fee as per the Fourth Schedule to the Arbitration and Conciliation Act, 1996, and a copy of the order is to be forwarded to counsel and the Arbitrator. ¶13

M/S Striker and Brothers Vs the State of Hp and Another — Arbitration | Himachal Pradesh HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the settlement entered into between the parties on 27.08.2021 barred the applicant from invoking the jurisdiction of this Court for appointment of an Arbitrator. +1 more

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Court's answer

Since it was not in dispute that no payment pursuant to the Agreement/Settlement had been made by the respondents, the applicant was entitled to unilaterally withdraw his undertaking dated 08.11.2021.

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Ratio / Principle

The respondents cannot any longer plead that the settlement dated 27.08.2021 bars the applicant from filing the application for appointment of an Arbitrator.

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Key takeaways

Shri Rajiv Sharma, former Judge of this Court, is appointed as Arbitrator to resolve the dispute between the parties, his appointment taking effect upon receipt of his written disclosure in terms of Section 11(8) of the Act and upon his consent.ratio¶10

Detailed headnote1 paragraphs

High Court of Himachal Pradesh (M.S. Ramachandra Rao, Chief Justice, oral order dated 10.04.2024) disposed of an application by M/s Striker & Brothers under Section 11(6) of the Arbitration and Conciliation Act, 1996 against the State of H.P. Work under a Letter of Award dated 28.01.2017 was completed on 27.08.2021, and a meeting of the Departmental Litigation Monitoring Committee that day produced a settlement whose agreed payments were never made. Holding that non-payment entitled the applicant to unilaterally withdraw its undertaking dated 08.11.2021, the Court ruled that the respondents could not plead the settlement dated 27.08.2021 as a bar to the application, and appointed Shri Rajiv Sharma, former Judge of the Court, as Arbitrator, effective upon his written disclosure under Section 11(8) and consent, with fee per the Fourth Schedule to the Act.

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Arb. Case No. 621 of 2023 Date of decision: 10.04.2024

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______________________________________________________ M/s Striker & Brothers …Petitioner

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Versus State of H.P. & another …Respondents ____________________________________________________ Coram:

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The Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Whether approved for reporting?¹

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_______________________________________________ For the petitioner : Mr. Suneet Goel, Advocate. For the respondents: Mr. Arsh Rattan, Deputy Advocate General.

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M.S. Ramachandra Rao, Chief Justice (Oral)

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This is an Application filed by the applicant seeking appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

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The applicant had been awarded work under an Agreement under a Letter of Award dt. 28.01.2017, which was to be completed within 12 months by 11.02.2018.

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Annexure P-1 is the Letter of Award and Annexure P-

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2 is the Agreement entered into between the parties.

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1 Whether the reporters of Local Papers may be allowed to see the judgment?

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Dispute arose between the parties.

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After completion of the work on 27.08.2021, there was a meeting of the Departmental Litigation Monitoring Committee under the Chairmanship of respondent no. 1 with the applicant for amicable settlement of the dispute. Though both the parties undertook on 27.08.2021 to do certain things and the respondent undertook to pay certain amounts to the applicant, and the applicant agreed to give up claims beyond that, the amount which the respondent had to pay to the applicant under the Agreement/Settlement dt. 27.08.2021, was not paid.

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Therefore, the applicant who had given an undertaking on 08.11.2021, withdrew the said undertaking on 31.03.2021 and has filed this Application invoking the Arbitration Clause contained in Clause 25 of the Arbitration and Conciliation Act.

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In the reply filed by the respondents, the respondents admitted the settlement entered into between the parties on 27.08.2021 and also the fact that the amounts agreed on the said date were not paid to the applicant, though certain steps are claimed to be initiated for arranging funds by the applicant.

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It is however contended that the applicant could not have invoked jurisdiction of this Court for appointment of the Arbitrator in view of the Settlement already entered into between the parties on 27.08.2021.

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Since it is not in dispute that no payment pursuant to the said Agreement has been made by the respondents to the applicant, the applicant was entitled to unilaterally withdraw his undertaking on 08.11.2021 and the respondents, therefore, cannot any longer plead that the settlement entered into between the parties on 27.08.2021 can bar the applicant from filing this Application.

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In this view of the matter, Shri Rajiv Sharma, former Judge of this Court, is appointed as an Arbitrator to resolve the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act, and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.

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On his giving consent to arbitrate the dispute between the parties as an Arbitrator, Shri Rajiv Sharma, former Judge of this Court, R/o House No. 505, Sector 36-B, Chandigarh

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shall enter into reference, and shall pass an award in accordance

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with law.

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Copy of this order be forwarded to the learned Counsel for the parties as also to the learned Arbitrator. The learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4^th Schedule appended to the Arbitration and Conciliation Act, 1996.

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The application is disposed of accordingly alongwith

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pending application(s), if any.

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(M.S. Ramachandra Rao) Chief Justice

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April 10, 2024 (hemlata)

M/S Striker and Brothers v. the State of Hp and Another

Case brief

What is this about?

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M/S Striker and Brothers v. the State of Hp and Another

Case brief

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What the court decided

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Procedural history

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