Disposed

Concan Specialised Engineering v. Military Engineer Services

Karnataka HC15 Sept 2021CMP/100001/2020

Case brief

AI extract

What is this about?

The High Court disposed of a petition under Section 11 of the Arbitration Act, 1996, seeking appointment of an arbitrator. The court held that since the petitioner abandoned the work and the respondent has not finalized alternative arrangements, the party to finalize such arrangements within two months before the arbitrator can be appointed.

What did the court decide?

The respondent directed to finalize alternative arrangements for completion of the incomplete work within two months.

Concan Specialised Engineering Vs Military Engineer Services — Arbitration | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 15^TH DAY OF SEPTEMBER, 2021

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

¶6

CMP No. 100001/2020

¶7

BETWEEN:

¶8

CONCAN SPECIALISED ENGINEERING SERVICES REPRESENTED BY ITS PROPRIETOR SRI PREETAM, S/O JAYARAM MASURKAR, AGED ABOUT 55 YEARS, OCC.: BUSINESS, R/O KARWAR, TQ & DIST: KARWAR-581 301.

¶9

PETITIONER

¶10

(BY SMT. GIRIJA HIREMATH, ADVOCATE FOR SRI G.I. GACHCHINAMATH, ADVOCATE) AND:

¶11

MILITARY ENGINEER SERVICES REPRESENTED BY ITS CHIEF ENGINEER (NAVY), MUMBAI 26, ASSAYE BUILDING, COLABA MUMBAI-400 005, STATE: MAHARASHTRA.

¶12

RESPONDENT

¶13

(BY SRI MRUTYUNJAY TATA BANGI, CGSC)

¶14

THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SEC. 11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO APPOINT SOLE ARBITRATOR & ETC.

¶15

THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING:

¶16

¶17

ORDER

¶18

This petition u/S 11 of the Arbitration & Conciliation

¶19

Act, 1996, is filed seeking appointment of a sole arbitrator for adjudication of the dispute between the parties in terms of clause 70 of the Tender Document dated 27.03.2017 entered into between the petitioner and the respondent.

¶20

Heard learned counsel for the petitioner and the learned Central Government Standing Counsel for the respondent and perused the materials on record.

¶21

The arbitration agreement contained in clause no. 70 of the aforesaid tender contract Rules reads as under:

¶22

70. Arbitration.- All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the contract to the other of them, be referred to the sole arbitration of an Engineer officer to be appointed by the authority mentioned in the tender documents.

¶23

Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the Work or termination or determination of the Contract under Condition Nos.55, 56 and 57 hereof.

¶24

¶25

Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any other Contractor or Contractors or Agency or Agencies.

¶26

Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the Government’s right of recovery from the contractor as provided in Condition 67 hereof.

¶27

If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place.

¶28

The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence.

¶29

The Arbitrator may proceed with the arbitration, exparte, if either party, inspite of a notice from the Arbitrator fails to take part in the proceedings.

¶30

The Arbitrator may, from time to time with the consent of the parties, enlarge, the time upto but not exceeding one year from the date of his entering on the reference, for making and publishing the award.

¶31

The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute.

¶32

¶33

The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion.

¶34

The award of the Arbitrator shall be final and binding on both parties to the Contract.

¶35

A perusal of the aforesaid arbitration agreement will indicate that it is expressly agreed by both the parties that in the event of abandoning of the work by the petitioner, reference to arbitration shall not take place until alternative arrangements have been finalized by the respondents to get works completed by or through any other contractor/ contractors/ agency/ agencies. A perusal of the correspondence between the petitioner and the respondent in particular the arbitral notice at Annexure-D dated 04.06.2019 will clearly indicate that the petitioner unequivocally and unambiguously intimated the respondents that the petitioner was not in a position to complete the work and thereby called upon the respondents to satisfy his claims with regard to the work already completed by him together with all benefits, if any, in respect of the work already completed by the petitioner.

¶36

¶37

The said letter and the earlier correspondence

¶38

addressed by the petitioner to the respondents will also indicate that subsequent to 04.06.2019, the petitioner has abandoned the work and has not continued the same so far. However, even subsequent to 04.06.2019 the respondents have not taken steps to get the incomplete work completed so far even as on today.

¶39

Under these circumstances, since the only

¶40

impediment to refer the dispute between the parties to arbitration in terms of the clause no. 70 is non finalization by the respondents to get the works completed through any other person, without expressing any opinion on the merits/ demerits of the rival contention with regard to the claim putforth by the petitioner in the present petition, I deem it just and proper to dispose of this writ petition directing the respondent to finalize the alternative arrangements to be made for completion of the incomplete work in terms of the proviso to clause 70 of the tender

¶41

¶42

agreement within a period of two months from the date of receipt of a copy of this order. Immediately upon finalization of the alternative arrangement as stated supra, the respondents shall take necessary steps to appoint arbitrator to enter upon reference in adjudication of the dispute between the parties and intimate the same to the learned Arbitrator as well to the petitioner immediately so to enable the learned Arbitrator to enter upon reference for proceeding further in the matter.

¶43

Subject to the aforesaid observations, the present petition stands disposed of.

¶44

All rival contentions on merits are kept open and no

¶45

opinion is expressed on the same.

¶46

SD JUDGE

¶47

bvv

Concan Specialised Engineering v. Military Engineer Services

Case brief

What is this about?

What did the court decide?

Concan Specialised Engineering v. Military Engineer Services

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

Similar cases

Kum.Ranjana Bala Naik Vs the Commissioner/Appellate Authority

Ravishankar S/O Basavaraj Bhooplapur Vs Captian Suresh S/O Sadashiv Hallikere

The Terdal Minority Co-Operative Vs the State of Karnataka

Sri. G. Ramakrishnamraju S/O Ram Raju Vs Smt. Yallamma W/O Shankrappa

Shri.Yallappa S/O Satappa Dabbagol Vs Smt.Gangavva W/O Satteppa Dabbagol

Sadanand S/O Narayan Naik Vs District Legal Services Authority