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TMI Blog2013 (2) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... s further subject to liquidated damages. Therefore, on facts there is no room to conclude that in the absence of any express communication extending the period of delivery, it can by implication or by necessary intendment be inferred that there was extension of delivery period in accordance with stipulations made in clause 3 read with clause 9. In any case the prayer was made for extension up to 20.09.2011 but the delivery could be made only on 07.10.2011 which again is beyond the period for which extension was sought. A perusal of clause 3 of Part III of the Standard Conditions of the Supply Order leaves no manner of doubt that there is intention of the parties to settle such difference by arbitration. The parties have agreed in writing to be bound by arbitration and the parties are ad idem. A perusal of clause further shows that the parties have agreed to settle all disputes or differences arising out of or in connection with the Supply Order by bilateral discussions. The very fact that the appellant-petitioner has filed the writ petition relatable to the instant appeal would itself show that there is a dispute with regard to the supply of Snow Mobiles by the appellant-petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in power supply in the month of December and because of severe snow storms the production in the Factory was disrupted which could be resumed only few days before the date of communication. A request for extension of 60 days was made. Similar communication seeking further time was addressed on 05.05.2011 with a prayer to extend the delivery period up to 20.09.2011. An assurance was held out that 10 Snow Mobiles would be arriving in India by 30th July, 2011 and the balance 11 Mobiles would be supplied on or before 15.09.2011. 3. The GOC-respondent no.2 is alleged to have issued the Custom Duty Exemption Certificate on 08.08.2011 for 14 number of Snow Mobiles and in respect of 6 number of Snow Mobiles similar Custom Duty Exemption Certificate was issued on 19.08.2011. The appellant-petitioner heavily banked upon these Custom Duty Exemption Certificates issued by GOC to argue that the time stood extended. However, the Custom Duty Exemption Certificate issued by the GOC on 29.10.2011 relates to 21 Arctic Boggan with Rails and are not referable to the Snow Mobiles. 4. The total 21 number of Snow Mobiles were delivered at 17 Engineering Det at Chandigarh on 07.10.2011 and informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 and sought extension of 60 days. Another request was sent on 05.05.2011 seeking extension up to 20.09.2011 with further stipulation that 10 Snow Mobiles were to be delivered by 30.07.2011 and balance by 15.09.2011. According to Mr. Sethi there was no response and the Custom Duty Exemption Certificate was issued on 19.08.2011 in respect of 6 Snow Mobiles. It has also been urged that respondent no.3 on 10.01.2012 requested the appellant-petitioner to depute its representative to HQ Northern Command, MGGS (SD WE) Secretariat on 24.01.2012 so as to work out the modalities of Engineer Support Package, spares and Annual Maintenance contract. On the basis of the aforesaid facts it has been submitted that there was sufficient indication to presume that time was extended to supply the Snow Mobiles. 7. We have bestowed our thoughtful consideration to the submission made by the learned counsel. However, we regret our inability to accept the argument because the last request for extension of time was made on 05.05.2011 to extend the period up to 20.09.2011. The Snow Mobiles were not delivered by 20.09.2011 and were actually delivered on 07.10.2011, therefore, it cannot be presumed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration and Conciliation Act, 1997, in unequivocal terms provides that no judicial authority is to intervene in respect of those matters which are governed by that Act. It is not in dispute that clause 3 of Part III of the Standard Conditions of Supply Order provides for resolution of disputes by reference to arbitration which reads as under:- Arbitration: All disputes or differences arising out of or in connection with the Supply Order shall be settled by bilateral discussions. Any dispute, disagreement or question arising out of or relating to the Supply Order or relating to construction or performance, which cannot be settled amicably, may be resolved through arbitration. The Arbitration is as per Form DPM-7 (for indigenous trade)/DPM-8 (for foreign supplies)/ DPM-9 (for PSUs) enclosed to Part-III of this Supply Order. 10. Section 2 (1) (b) of the Act defines the expression arbitration agreement to be an agreement referred to in Section 7. It is an agreement between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not. An arbitration agreement may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited v. Telephones Cables Limited, (2010) 5 SCC 213. Thus on the basis of precedents, practices, statutes and arbitration agreement the writ petition filed by the appellantwrit petitioner cannot be held to be maintainable. 13. Before parting we may refer to an argument raised by Mr. Sunil Sethi that in every case it is not necessary to resort to arbitration. In that regard he has placed reliance on a judgment rendered by Hon ble the Supreme Court in Union of India and ors v. Tantia Construction Pvt. Ltd, (2011) 5 SCC 697. According to Mr. Sethi the arbitration clause is not a bar for invoking writ jurisdiction when injustice is caused and rule of law is violated. In all commercial contracts of the nature in hand and the one which is in question in the present case, it is not possible to conclude that there is any violation of any rule of law of such a nature that equitable jurisdiction of the High Court under Article 226 is required to be exercised. It cannot be concluded that any injustice would result by refusing to exercise jurisdiction under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. Therefore, we are not impr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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