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TMI Blog1999 (2) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... siders the drawings, records or ruling of the Engineer-in-charge and any matter in connection with or arising out of the contract the carrying out of work to be unacceptable, he shall promptly ask the Engineer-in-charge in writing, for written instructions or decision. Thereupon the Engineer-in-charge shall give his written instructions or decision within a period of thirty days of such request. Upon receipt of the written instructions or decision, the Contractor shall promptly proceed without delay to comply with such instructions or decision. If the Engineer-in-Charge fails to give his instructions or decision in writing within a period of thirty days after being requested, or if the Contractor dissatisfied with the instructions or decision of the Engineer-in-Charge, the Contractor may within thirty days after receiving the instructions or decision appeal to the Director General, MANAGE, who shall afford an opportunity to the Contractor to be heard and to offer evidence in support of his appeal. The Director General, MANAGE shall give a decision within a period of thirty days after the Contractor has given the said evidence in support of his appeal. If the Contractor is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of actual payment. The applicant-company also wrote another letter dated 30-5-1998 requesting the Director General, MANAGE for appointment of the sole arbitrator for adjudication in terms of clauses 52.2 and 52.3 of the agreement. To that letter, the respondent wrote a letter dated 3-7-1998 to follow the proce-dure prescribed in clause 52.2. Meanwhile, it appears that the applicant requested the respondent, as to indicate the nature of procedure. In those circumstances, the respondent vide letter dated 15-7-1998 directed the applicant to prefer an appeal in terms of clause 52.2, so that further proceedings could be taken up in terms of clause 52.3. Instead of prefer-ring an appeal, the applicant proposed a panel of arbitrators vide its letter dated 24-7-1998. For that, the respondent MANAGE wrote a letter dated 11-8-1998 rejecting the panel sent by the applicant, specifically stating that the applicant has got to adopt the procedure laid down in clause 52.2 of the general conditions of the agreement. Thereafter, vide their letter dated 18-8-1998, the applicant requested the respondent to give clear indication under what provision appeal has got to be preferred. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute shall be referred for an arbitration by a sole arbitrator and a further procedure as to how such sole arbitrator could be appointed, is provided. It is only having regard to these conditions in clauses 52.2 and 52.3, vide its letters dated 3-7-1998 and 15-7-1998, the respondent MANAGE directed the applicant to follow the procedure. Vide letter dated 18-8-1998, the applicant further requested the respondent as to under which provision, such an appeal should be preferred and thereafter, on receiving communication from respondent, they preferred an appeal petition on 22-8-1998 with all the details and that appeal petition was dismissed on 25-9-1998 and in terms of last portion of clause 52.2, within 30 days of the communication of the appeal order dated 25-9-1998, the applicant intimated his dissatisfaction with the decision. But, however, he stated that the panel is not acceptable to him vide his letter dated 9-10-1998. But without accepting this stand taken by the applicant, the respondent-Management appointed Shri Nainani as the sole arbitrator vide proceedings dated 27/29-10-1998. It has to be mentioned at this stage itself, as I have already noticed above, the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the panel as the sole arbitrator and there is no power with the contractor to reject all the persons in the panel, simply stating that they are not acceptable to him. The power of the contractor to select and seek the appointment of a sole arbitrator would arise only if the Director General does not propose a panel of the arbitrators within the stipulated time. In the instant case, the Director General has proposed a panel along with the appeal order itself and it does not lie in the mouth of contractor to say that he does not want to accept any one of them. As per the terms of the agreement, incorporated under clause 52.3, the contractor is bound to accept one of the persons in the panel as the sole arbitrator and if he does not indicate any one person from the panel, the Director General would be entitled to appoint one person from the said panel and that has been done in this case. Both the parties are bound by the clauses 52.2 and 52.3 of the agreement and accordingly, Shri Nainani has been appointed as the sole arbitrator in terms of clause 52.3 and hence I do not find that this is a case for appointment of the arbitrator at the hands of the High Court. 5. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties,- ( a )a party fails to act as required under that procedure; ( b )the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or ( c )a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice of any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment." Section 11(2) provides that subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. In the instant case, the parties have agreed to for a certain procedure for appointment of an arbitrator. Sub-section (6) of section 11 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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