Yogesh Khanna JUDGMENT
Yogesh Khanna, J.
1. The respondent No. 1 floated a notice inviting Tender inter alia for the civil and electrical work of Super Specialty Hospital, wherein several bids were invited. The hospital was to be constructed at Guwahati. The petitioner also participated and was awarded the said work order on 22.06.2013 at the mutually agreed amount of Rs. 33,38,76,000/-. The LOI was issued by respondent No. 1 for the said work.
2. On 05.07.2013, an Article of Agreement was entered into containing the special conditions of the Contract, Specifications and Schedules of quantities with the rates entered therein forming part of the agreement/LOI. It is alleged by the petitioner the respondent did not pay the complete advance mobilization money despite request even after five months from the date of the execution of the agreement. The petitioner kept on doing the work and sending the bills but on 11.11.2014 the respondent terminated the major civil contract and entire electrical contract and directed to complete the remaining work in accordance with the schedule sent through the e-mail. There was some dispute for payment of Rs. 35,00,000/- to be paid to the petitioner and a meeting on 11.12.2014 was held wherein the petitioner sent a payment plan for adjusting Rs. 35,00,000/- which was due on the respondent. On the request of the respondent, the petitioner continued with the work and completed it to the satisfaction of the respondent and submitted its 15th RA final bill. The completion certificate dated 29.02.2016 was issued by the respondent's architect and he recommended the payment of 15th RA bill dated 27.02.2016 amounting to Rs. 51,31,959/-.The completion certificate was also issued by the respondent on 31.03.2016. There was some dispute qua payments. Receiving no response, the petitioner sent a legal notice for appointment of arbitrator. Hence the petition.
3. It is not in dispute the proposed hospital was constructed at Guwahati. It is alleged by the respondent the payment were to be made at Guwahati. The services were provided at Guwahati and contract was terminated at Guwahati. The respondent relied on clause 8 of the agreement dated 05.07.2013 to say only the courts at Guwahati shall have jurisdiction to determine the dispute between the parties. Clause - 8 of the agreement dated 05.07.2013 read as under :
8. "This Agreement and Contract shall be deemed to have been made in Guwahati and any questions or dispute arising out of or in any way connected with this Agreement and Contract shall be deemed to have arisen in Guwahati and only the court in Guwahati shall have jurisdiction to determine the same."
4. However, the respondent refers to addendum to the agreement dated 05.07.2013 which contain clause - 21.1 as under :
21.1 In case any dispute or difference shall arise between the OWNER or the ARCHITECT on his behalf and the CONTRACTOR touching or concerning this contract or the construction, meaning, operation or effect thereof or of any clause herein contained or as to the rights, duties or liabilities of the parties hereto respectively arising out of or in relation thereto (except as to matters left to the sole discretion of the ARCHITECT) the same shall be referred to the arbitration of a sole arbitrator who shall be Shri. -----. The seat of arbitration shall be at New Delhi and shall be final and binding on the parties.
Work under 'the Contract shall, if reasonably possible, continue during the arbitration proceedings and no payments due or payable by the OWNER shall be with-held on account of such proceedings & payment due to the CONTRACTOR will be made by the OWNER under the advice from ARCHITECT in writing.
5. The main dispute is if arbitrator at Delhi is to be appointed or the courts at Guwahati shall have th........