On 29th July, a bench of Delhi High Court consisting of Justice Suresh Kumar Kait, while hearing a petition between Enkebee Infratech India Private Limited and Bharat Heavy Electricals Ltd in seeking appointment of arbitrator for adjudication of disputes between the two companies, appointed Justice Deepak Mishra, former Chief Justice of India, as the sole arbitrator after observing that although the petition had been opposed by counsel for respondent, however, existence of arbitration agreement between the parties and invocation of arbitration were not disputed.
Facts of the case:
Petitioner, Enkebee Infratech India Private Limited, a company incorporated under the Companies Act, 2014 had preferred the present petition under the provisions of Section 11 of Arbitration and Conciliation Act, 1996 seeking appointment of an Arbitrator for adjudication of disputes with Bharat Heavy Electricals Ltd. According to petitioners, on 09.05.2018 respondent invited bids for civil work for Visakh Refinery Modernization Project at HPCL, Vishakapatnam, Andhra Pradesh. The price bid was opened on 19.06.2018 and petitioner was invited for negotiation. On 20.06.2018, negotiations were conducted and a final price offer was made by the petitioner, which was accepted by the respondent by Letter of Intent dated 23.06.2018. However, from the very inception of the project the respondent failed to comply with the terms and conditions of the agreement to facilitate timely execution of the project due to which the petitioner had suffered tremendous financial constraints.
Contention of the Petitioner:
The following contentions have been submitted on behalf of the petitioners:
- It was urged that the petitioner had suffered tremendous financial constraints to complete the project and delay in completing the project resulted in formal increase in the contract value from Rs.26,58,33,800/- to Rs.37,07,96,762/- by way of an amendment to the Work Order on 05.03.2020.
- It was further urged that petitioner vide letter dated 20.12.2020 invoked Clause 2.21.1 of the General Conditions of the Contract (GCC) to refer the dispute to the Designated Engineer for settlement of disputes. However, the Designated Engineer failed to pass within a period of reasonable time a reasoned order as he dismissed petitioner’s claim without appreciating the contentions of the petitioner.
- It was submitted that he arbitration clause mentioned in the 2.21.2 of the GCC, stipulates that in the event of contractor being dissatisfied with the decision of the Designated Engineer or the parties fail to settle the disputes by means of amicable settlement, the dispute shall be referred for arbitration. Hence, the petition.
Contention of the Respondent:
Ms. Mayuri Raghuvanshi, on behalf of the respondent had opposed the present petition on the ground of maintainability.
Observation and judgment of the court:
The Hon’ble bench of the court after observing that although the present petition has been opposed by counsel for respondent, however, existence of arbitration agreement between the parties and invocation of arbitration are not disputed.
In the view of the above the court appointed Justice Deepak Mishra, former Chief Justice of India, as the Sole Arbitrator to adjudicate the dispute between the parties.
Read Judgment @Latestlaws.com
