Prime Adhivas Contracts Pvt. Ltd., (A Company Registered Undercompanies Act, 1956) v. M/S Spytech Buildcon Pvt. Ltd

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Arbitration Application No. 2/2021 Prime Adhivas Contracts Pvt. Ltd., (A Company Registered UnderCompanies Act, 1956) Having Its Registered Office At B-64B,Bhan Nagar, Queens Road, Jaipur 302021 Through Its AuthorizedRepresentative Mr. Sandeep Jain, S/o Shri D.k. Jain ----Petitioner Versus M/s Spytech Buildcon Pvt. Ltd., 501, 5[th] Floor, Class Of Pearl, K-48, Income Tax Colony, Off Tonk Road, Jaipur (Raj) 302018 ----Respondent For Applicant(s) For Respondent(s) : Mr. Sandeep Pathak withMs. Vartika MehraMs. Vartika Mehra : Mr. Saurabh JainMs. Abhilasha SharmaMs. Abhilasha Sharma HON'BLE MR. JUSTICE PANKAJ BHANDARI Order RESERVED ON::20/07/2022 PRONOUNCED ON::27/07/2022 1.The applicant has filed this arbitration application underSection 11(6) of the Arbitration and Conciliation Act, 1996(hereinafter referred to as “the Act of 1996”) for appointment ofan arbitrator. 2.It is contended in the arbitration application that theapplicant entered into a construction with the non-applicant/respondent (hereinafter referred to as “therespondent”). The applicant was engaged by the respondent as itscontractor on rate basis. The agreement was entered into betweenthe parties on 14.11.2013. Thereafter, a supplementary agreement was entered into between the parties on 25.07.2016.It is pleaded in the arbitration application that a total amount ofRs.2.20 Crores is outstanding to be paid by the respondent to theapplicant in terms of the agreements dated 14.11.2013 and25.07.2016. A legal notice for arbitration was served on therespondent on 12.10.2020. However, the respondent did not giveany reply to the said notice. 3.The respondent has submitted reply to the arbitrationapplication raising preliminary objections with regard to thearbitration application not being filed by an authorized person andsecondly that the arbitration application is barred by limitation. 4.It is contended by the counsel for the applicant that in theagreement entered into between the parties, there is anarbitration clause i.e. Clause-9. It is also contended that in thesubsequent agreement, it was specifically mentioned that theterms and conditions for execution of above item will remain sameas per the original agreement dated 14.11.2013. Counsel for theapplicant has drawn my attention towards the ledger whereinpayment has been received by the applicant. It is also contendedthat last payment was received on 17.10.2017 and the notice wasgiven on 12.10.2020 and was thus within limitation. Counsel forthe applicant has placed reliance on United Bank of India VersusNaresh Kumar & Ors.: (1996) 6 SCC 660. 5.Counsel for the respondent has vehemently opposed thearbitration application. It is contended that the arbitrationapplication is not filed by the competent person and the same isbarred by limitation. 6.I have considered the contentions and have perused theagreements entered into between the parties. 7.Clause 9 of the General Terms and Conditions of theagreement entered into between the parties is reproduced here-under: “9.GOVERNING LAW: i)In case of any dispute arising between the partiesin respect of meaning and interpretations with regardto any of the clauses of this agreement or any otherdispute(s) relating to or concerning to this agreementshall be referred to Arbitration & Reconciliation Act,1996 as amended from time to time.” 5.Counsel for the respondent has vehemently opposed thearbitration application. It is contended that the arbitrationapplication is not filed by the competent person and the same isbarred by limitation. 6.I have considered the contentions and have perused theagreements entered into between the parties. 7.Clause 9 of the General Terms and Conditions of theagreement entered into between the parties is reproduced here-under: “9.GOVERNING LAW: i)In case of any dispute arising between the partiesin respect of meaning and interpretations with regardto any of the clauses of this agreement or any otherdispute(s) relating to or concerning to this agreementshall be referred to Arbitration & Reconciliation Act,1996 as amended from time to time.” 8.From a plain reading of Clause-9, it is evident that there isan arbitration clause in the agreement executed between theparties. From the document (Annexure-3), it has been shown thatlast payment was received by the applicant on 17.10.2017 and thenotice for appointment of an arbitrator was given to therespondent on 12.10.2020. This Court, therefore, does not thinkthat the present dispute is a deadwood so as to consider it as anon-arbitrable matter. Even otherwise, it has been held by variouspronouncements of the Apex Court that the question of limitationcan be very well raised before the arbitrator. 9.As far as the other objection with regard to the arbitrationapplication not being filed by an authorized person is concerned,from the perusal of Annexure-1, it is evident that Board ofDirectors have authorized the Director to file the petition,however, in the document, instead of ‘arbitration application’,‘execution petition’ has been mentioned. This objection cannot beconsidered so as to make the dispute non-arbitrable as it is a curable defect. This Court, therefore, deems it proper to allow thepresent arbitration application. 10.This Court appoints Mr. Justice K.S. Choudhary (Retired), B-231, Meera Path, Vaishali Nagar, Jaipur, as the arbitrator to decidethe dispute(s). 11.The appointment of the sole arbitrator is subject to thedeclarations being made under Section 12 of the Arbitration andConciliation Act, 1996 with respect to the independence andimpartiality, and the ability to devote sufficient time to completethe arbitration within prescribed period. 12.Accordingly, arbitration application stands allowed. Thearbitrator shall be entitled to lay down fees as provided underManual of Procedure for Alternative Disputes Resolution, 2009 asamended from time to time. 13.Registry is directed to intimate Mr. Justice K.S.Choudhary (Retired) and obtain his formal consent. (PANKAJ BHANDARI),J SUNIL SOLANKI /PS