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2022 (8) TMI 1462 - HC - Indian LawsMaintainability of appeal filed by the petitioner under Section 37(2) of the Arbitration Act - direction to deposit the amount to the extent of 7.5% of the claim amount in terms of Section 25(A)(viii) of the Contract - failure to to perform contractual obligations on the part of respondents. HELD THAT:- A similar controversy was sought to be raised in M/S GARG AND COMPANY VERSUS STATE OF HARYANA AND OTHERS. [2022 (4) TMI 1565 - PUNJAB AND HARYANA HIGH COURT] and other connected writ petitions, which have been dismissed on 08.04.2022. Question raised for adjudication in the said writ petitions was also whether the clause in question requiring a pre-deposit for invocation of Arbitration is unreasonable, unconscionable and liable to set aside. Clause in question in the abovesaid writ petitions was identical as clause 25(A)(vii) involved in the instant writ petition. Reliance had been placed on M/s ICOMM Tele Limited [2019 (3) TMI 600 - SUPREME COURT] as is the case in the present writ petition. However, while dealing with the contentions as raised and dismissing the said writ petitions, judgment of the Three Judge Bench of the Hon’ble Supreme Court in S.K. Jain v. State of Haryana [2009 (2) TMI 926 - SUPREME COURT] was duly considered. It was also noticed that Hon’ble Supreme Court itself in the case of M/s ICOMM Tele Limited referred to the case of S.K. Jain and infact upheld the clause regarding pre-deposit in S.K. Jain’s case. Thus, the question sought to be raised has been clearly answered against the petitioner. Learned counsel for the petitioner is unable to point out any distinguishing feature in the present writ petition which calls for interference. Insofar as the argument raised on behalf of the petitioner that once Chief Engineer has appointed Arbitrator on demand raised by the petitioner without any condition of pre-deposit, thus, the same amounts to waiver of said condition, is of no avail to the petitioner, for the reason that it is specifically observed by the learned Arbitrator in order dated 15.01.2022 that appointing authority did not waive the condition of pre-deposit but rather asked the Arbitrator to decide the disputes as per clause 25 and 25 (A) of the Contract instead of passing any other order after taking note of the claimant’s plea that it was not liable to deposit 7½% of the claimed amount - It has been rightly held that appointment of Arbitrator in this manner cannot be construed as waiver of condition of pre-deposit. This Court is clearly bound by the judgment of the Hon’ble Supreme in the case of S.K. Jain which has admittedly not been over ruled till date. Petition dismissed.
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