TMI Blog2002 (5) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... work in terms of the contract agreement dated 17 July, 1993. The work was scheduled to be completed on 2 May, 1994 but was in fact completed on 29 October, 1994, after an extension was granted by the respondents on 29 July, 1994. According to the applicant, the delay in the completion of the work awarded occurred on account of the delay in handing over of the site. The applicant submitted his final bill, which, inter alia , included damages on account of prolongation of the contract period. However, various amounts claimed by the applicant were objected to by the respondents. 3. Thus, disputes having arisen between the parties, the applicant, vide his letter dated 3 July, 1996, invoked the arbitration clause and requested the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that since the delay in handing over the site stands admitted by the respondents, neither clause (A) nor clause (B) of Condition No. 11 of the General Conditions of Contract was applicable and consequently, the claim, made by the applicant as damages for delay in the execution, did not fall in the category of excepted matters as specified in clause (C) of the said Condition. It is also urged that in view of the fact that existence of the arbitration agreement and the disputes between the parties is not being questioned by the respondents, the appointing authority was not justified in restricting the scope of arbitration by the nominated arbitrator. In support, reliance is placed on the three judge bench decision of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are applicable. Section 11 lays down the procedure for appointment of arbitrators by the parties. Sub-section (6) thereof, inter alia , provides that in case of failure of a party to act as required under the appointment procedure agreed upon by the parties, a party may request the Chief Justice or any person designated by him to take the necessary measures for securing the appointment of arbitrator. The scope and ambit of section 11 of the Act has been succinctly explained by the Apex Court in the case of Konkan Railway Corpn. Ltd. ( supra ), as follows : ". . . When the matter is placed before the Chief Justice or his nominee under section 11 of the Act it is imperative for the said Chief Justice or his nominee to bear in mind th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia , observed that there is nothing in section 11 which contemplates a decision by the Chief Justice or his designate on any controversy that the other party may raise, even in regard to its failure to appoint an arbitrator within the period of thirty days. The only function of the Chief Justice or his designate under the said section is to fill the gap left by a party to the arbitration agreement. 12. Therefore, in the light of the aforenoted decisions, it is clear that under section 11 of the Act the Chief Justice or his designate, while exercising his power under the said provisions, cannot entertain or decide the issues like existence of arbitration agreement, its validity or scope or the jurisdiction of the arbitrator to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjections raised by the respondents. 14. The decision of the Supreme Court in Sarvesh Chopra s case ( supra ) heavily relied upon by learned counsel is of no avail to the respondents. From a bare reading of the said decision it is clear that the Apex Court was dealing with a case arising under section 20 of the Arbitration Act, 1940. When dealing with a petition under section 20 of the said Act the Court was required to look at the nature of the claim as preferred and decide whether it fell within the category of excepted matters and, therefore, not referable for arbitration in terms of the contract between the parties, which is not the case while dealing with an application under section 11 of the Act. 15. The question that now r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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