KSS Kssiipl Consortium Vs. GAIL (India) Ltd.
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Head Note
The Arbitration and Conciliation Act, 1996 - Section 11 (6)
Arbitration and Conciliation Act, 1996 - Section 11(6) - Sole arbitrator - Appointment of - Before exercising the power to make appointment of an arbitrator the Court will have to decide on the existence of an arbitrable dispute/enforceable claim by and between the parties to the contract - The existence of a claim and denial thereof giving rise to a dispute is required to be determined on the basis of what the parties had agreed upon as embodied in the terms of the contract and only for the purpose of a decision on the question of arbitrability and nothing beyond.
The petitioner had quoted "NIL" against compensation for extended stay in its bid - If that is so, it must be understood that the petitioner had agreed to forego its claim to extended stay compensation in the event the period of performance of the contract is to be extended as had happened in the present case -If the petitioner had voluntarily and consciously agreed to the above situation, it will be difficult to accept the contrary position that has sought to be now adopted by seeking to claim extended stay compensation which was earlier agreed to be foregone - It must therefore be held that the claim against the aforesaid 'Head' i.e. 'extended stay compensation' does not give rise to an arbitrable dispute so as to permit/require reference to arbitration under clause 59.
Claim for payment of additional works - Clause 91.1 and 91.2 contemplate the making/raising of claims by the contractor for additional works and consideration thereof by the Engineer-in-chief - The decision of the Engineer-in-chief is final and binding - The claims made by the petitioner for payment of additional works under both the contracts referred to arbitration by Chief Justice (Retd.), Jammu & Kashmir High Court, who is hereby appointed as the sole arbitrator.
Topic(s)-Appointment of Arbitrator