TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1109
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....ork was Rs. 147.68/- lacs and the value of the agreement was Rs. 1,74,51,543.87/-. The period of completion of works was 18 months from the date of notice to proceed with the work. The job was awarded underwent changes involving extra items and due to various reasons, time was required to be extended which was formally extended till 31.12.90 and continued by mutual conduct till 27.06.91, the date mutually agreed as date of completion, as per agenda note. The final bill as was required to be adjudicated, amounted to Rs. 2,11,52,015.34/- According to the respondent State of Jharkhand, amount of Rs. 1,99,91,685.00/- has been paid with remaining amount of Rs. 11,60,330.00/-, was remain unpaid. As per the condition of agreement, there was permissible recovery of Rs. 4,12,761.00/- from the contractor, thus, resulting in the dispute related to Rs. 7,47,569.00/-. The respondent State of Jharkhand withheld security deposit of Rs. 1,62,694.00/-. The claimants vide their letter No. MC/0395/95 dated 11.09.1993, claimed an amount of Rs. 1,45,22,104.00 + Rs. 54,000/-. The aforesaid dispute having not been resolved, the petitioner has made an application under Section 11(6)(C) of the Arbitrati....
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.... has been rejected on the ground of having no liberty granted by the Court while passing the order under Section 37 of the Act, 1996, therefore, the instant application under Section 11(6)(C) has been filed. 6. Mr. Salona Mittal, learned counsel appearing for the State of Jharkhand has submitted by referring to the averment made in the counter affidavit more particularly, the averment made at para-16 thereof, wherein, stand inter-alia has been taken that in absence of any liberty granted by the Court passed the order in exercise of power conferred under Section 37 of the Act, 1996, therefore, there is no question of appointment of Arbitrator afresh. He further submits that the State authority after taking into consideration the aforesaid aspect of the matter is correct in not appointing the Arbitrator. 7. This Court has heard the learned counsel for the parties, perused the documents available on record as also the documents appended thereto. 8. The admitted fact, as would appear from the material available on record that the petitioner/applicant has entered into an agreement on 12.03.1987 for construction of Officer's Bungalows at Jubilee Park site and Adityapur Site, Jamsh....
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....the fact that the mandate of Section 24(1) of the Act, 1996 was not followed. The petitioner/applicant has assailed the order passed by this Court under Section 37 of the Act, 1996 before the Hon'ble Apex Court, wherein, the Hon'ble Apex Court while passing the order on 15.10.2020 in SLP(Civil) No(s). 14340 of 2020 has dismissed the appeal on the ground of delay as also on the ground of merits. The petitioner/applicant, thereafter, has made fresh request vide request letter dated 24.10.2020 for appointment of Arbitrator in view of the arbitration clause, since, the dispute as has been raised will be said to have not resolved due to quashing and setting aside of the award by the order passed by the Court of Law. However, the State authorities have rejected the said request letter on the ground that there is no question of appointment of fresh Arbitrator for resolution of dispute, on the ground, that there is no liberty having been granted by the Court passing order under Section 37 of the Act, 1996. 11. It is, therefore, admitted from the undisputed fact that the instant application filed under Section 11(6)(C) of the Act, 1996, is the second one after filing of the arbit....
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....ion the Contractor shall promptly proceed without delay to comply with such instructions or decision. If the Executive Engineer fails to give his instructions or decision in writing within a period of thirty days after being requested, or if the Contractor is dissatisfied with the instructions or decision of the Executive Engineer, the Contractor may within thirty days after receiving the instruction or decision appeal to Superintending Engineer, who shall afford an opportunity to the Contractor to be heard and to offer evidence in support of his appeal. This officer shall give a decision within a period of sixty days after the Contractor has been given the said evidence in support of his appeal. If the Contractor is dissatisfied with this decision, the Contractor within a period of thirty days from the receipt of the decision shall indicate his intention to refer the dispute to arbitration, failing which the said decision shall be final and conclusive." 15. The contention which has been raised by the State respondent about not maintaining a fresh application under Section 11(6)(C). 16. There is no dispute that the order passed under Section 37 of the Act, 1996 by this Court ....
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....ard has been quashed, it is open upon the parties to begin the arbitration again, if it is desired. This proposition, itself clarifies that in a case where the dispute has not been resolved and the award had been quashed, it will be left open upon the parties to raise the dispute, reason being that the dispute if not resolved cannot be allowed to remain un-conclusive. The Hon'ble Apex Court further in the case of Project Director, National Highways No. 45 E and 220 National Highways Authority of India Vs. M. Hakeem & Anr., - (2021) 9 SCC 1, has been pleased to hold at paragraph-25 thereof that the application under Section 11(6)(C) of the Act, 1996, is maintainable for appointment of sole Arbitrator once award is being quashed by the competent court of law, for ready reference, paragraph-25 reads as under:- "25. As a matter of fact, the point raised in the appeals stands concluded in McDermott International Inc. v. Burn Standard Co. Ltd. [McDermott International Inc. v. Burn Standard Co. Ltd., -(2006) 11 SCC 181], where this Court held : (SCC p. 208, paras 51-52) "51. After the 1996 Act came into force, under Section 16 of the Act the party questioning the jurisdiction of ....
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....81], this Court held as under : (SCC p. 208, para 52) "52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it." 19. This Court, after taking into consideration the aforesaid proposition of law, as has been settled by the Hon'ble Apex Court and after going across the facts of the given case, wherefrom, it is evident that even though the award was pronounced on 20.12.2005 which was affirmed by the Court in exercise of power conferred under Section 34 of the Act, 1996, but, has been quashed and set aside by....