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Chabbra's Associates Vs. Superintending Engineer Mysore City Corporation - (High Court of Karnataka) (11 Jan 2019)

When arbitration clause is not applicable to particular work in question, arbitrator cannot be appointed

MANU/KA/0056/2019

Arbitration

By way of present application filed under Section 11 of the Arbitration and Conciliation Act, 1996, the Petitioner, said to have entered into a contract with the Respondent for execution of the civil work for development of road, has prayed for appointment of an independent arbitrator to adjudicate upon and decide the dispute between the parties.

It is submitted that, the Conditions of Contract annexed to the Agreement dated 23rd July, 2010 provide for adjudication of dispute through arbitration and the Petitioner called upon the Respondent to submit itself for arbitration, but the Respondent neither replied to the notice nor complied with the demand. The Respondent has contended that in fact, non-existence of arbitration clause in the contract in question is explicit on the face of the record and, therefore, the petitioner is not entitled for the relief as claimed.

Present Court finds no reason to reject the contentions of the Respondent particularly, in view of the explicit terms of the contract in question. In a comprehension of the terms and conditions between the parties, the only logical deduction is that in the printed form, the mechanism for resolution of dispute is provided in Clause 24 and therein, the contractor, on being not satisfied by the decision taken by the employer, could get the dispute referred to arbitration. However, in the Special Conditions of Contract, it is also provided in the same printed form that Clause 24, i.e., 'Arbitration' is not applicable for the work in question.

When Special Condition 4 specifically excludes Arbitration Clause 24, this Court is clearly of the view that, non-existence of arbitration clause in the contract in question is explicit. Though learned counsel for the Petitioner has attempted to rely upon the aforesaid procedure for arbitration in Clause 4.1 of the Special Conditions of Contract, but said procedure would be applicable only if there is an arbitration agreement and the matter is referred to arbitration. Said procedure could be made applicable only to the proceedings for arbitration in relation to an arbitrable dispute. As per the terms of the contract, the arbitration clause is not applicable to work in question and hence, there appears no reason for appointment of any arbitrator in this matter. Petition dismissed.

Tags : ARBITRATOR   APPOINTMENT   CLAUSE  

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