M/S B. K. Infratech Pvt. Ltd., ... vs Ntpc Ltd. (National Thermal Power ...
2016 Latest Caselaw 1448 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                            NAGPUR BENCH AT NAGPUR




                                                                                                                             
                                 MISCELLANEOUS CIVIL APPLICATION NO.1177/2015

    M/s. B.K. Infratech Pvt. Ltd., 




                                                                                                                            
    through its Director Shri Ranjit Bhake, 
    aged about Major, Occu. Business, 
    having its registered office at 502, 
    The Great Eastern Galleria, 




                                                                                                   
    Plot No.20, Sector No.4, 
    Nerul Navi Mumbai- 400 706.                                                                                                                               ..Applicant.


    1.
                  ..Versus..
                  NTPC Limited (National Thermal
                                                                 
                  Power Corporation Limited), 
                                                                
                  registered office at NTPC Bhawan, 
                  Scope Complex 7, Lodhi Road, 
                  Institutional Area, New Delhi - 100 003, 
                  through its Chairman cum Managing 
                  

                  Director. 
               



    2.            The Senior Manager (C & M),
                  NTPC Limited, Mouda Super
                  Thermal Power Project Mouda
                  Ramtek Road, Mouda, 





                  Distt. Nagpur, Maharashtra  441 104.                                                                                              ..Non-applicants.
     - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---------
                Shri U.A. Gosavi, Advocate for the applicant. 
                Shri Tushar Darda, Advocate for non-applicants.
    - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -





                                                                       CORAM  :  Z.A. HAQ, J.
                                                                       DATE  :    12.4.2016
                                          

    JUDGMENT

1. Heard Shri U.A. Gosavi, advocate for the applicant and Shri Tushar Darda,

advocate for the non-applicants.

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2. Rule. Rule made returnable forthwith.

3. On 24th April, 2013, Shri V. Thangapandian, Group General Manager of

non-applicant no.1 - company was appointed as an Arbitrator to resolve the dispute

between the applicant and the non-applicant no.1. The learned Arbitrator entered

the office and started the proceedings. On 29 th August, 2015, the Arbitrator

resigned from the post of Group General Manager and joined another company as

Director. The Arbitrator informed that because of the above fact he was not in a

position to continue with the arbitration.

The applicant filed this application under Section 11(6) of the Arbitration and

Conciliation Act, 1996 (for short "Act of 1996") praying that an Arbitrator be

appointed to resolve the dispute between the parties. The application is filed on or

about 28th September, 2015. The application was listed before the Court on 27 th

November, 2015. At the time of hearing, the advocate for the applicant had

submitted that after filing of the application the applicant got information that the

non-applicant no.1 has appointed another Arbitrator. Relying on the submissions

made on behalf of the applicant, this Court directed issuance of notice to the

non-applicants. In response to the notice, the non-applicant no.1 has filed the

reply.

4. Shri Darda, learned advocate for the non-applicants has pointed out the

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application filed by the applicant before the District Court under Section 9 read with

Section 14 and 12(5) of the Act of 1996 (as amended) and has submitted that after

the termination of mandate of earlier Arbitrator, the applicant has not requested for

appointment of another Arbitrator and though the application under Section 11 of the

Act of 1996 is filed before this Court on or about 28 th September, 2015, the applicant

has not taken any steps to circulate the matter till Shri A.K. Nanda is appointed as

Arbitrator. It is submitted that the application under Section 9 read with Section 14

and 12(5) of the Act of 1996 (as amended) is filed before the District Court on or

about 21st January, 2016 and the grievance of the applicant before the District Court

was that the mandate or Arbitrator Shri A.K. Nanda be terminated as he is having

interest in the company and he will not be impartial. It is pointed out from this

application that the applicant raised challenge to the eligibility of Shri A.K. Nanda to

be the Arbitrator. It is submitted that in these facts, the claim of the applicant for

appointment of an Arbitrator cannot be considered as Shri A.K. Nanda is already

appointed as the Arbitrator. It is prayed that the application be dismissed with

costs.

5. Shri Gosavi, advocate for the applicant has submitted that after Shri V.

Thangapandian informed about his inability to continue as the Arbitrator, it was

incumbent on the part of the non-applicant no.1 company to appoint another

Arbitrator within 30 days and the non-applicant no.1 having failed to take steps in

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the matter, it lost the right to appoint the Arbitrator. It is submitted that the

application filed under Section 9 read with Section 14 and 12(5) of the Act of 1996

was filed before the District Court subsequent to the filing of the present application

and it is withdrawn on or about 26 th February, 2016 and, therefore, it cannot be said

that the present application cannot be entertained. It is submitted that the non-

applicant no.1 company having failed to appoint the Arbitrator within 30 days from

29th August, 2015 when the mandate of Arbitrator Shri V. Thangapandian stood

terminated, the non-applicant no.1 company lost its right to appoint Arbitrator and

this Court has to appoint an Arbitrator as per Section 11 of the Act of 1996. In

support of the submission, the learned advocate for the applicant has relied on the

following judgments:

(i) judgment given in the case of Deep Trading Company V/s. Indian Oil Corporation and others reported in 2013(4) SCC 35,

(ii) judgment given in the case of Bipromasz Bipron Trading

SA V/s. Bharat Electronics Limited (BEL) reported in (2012) 6 SCC 384 and

(iii) judgment given in the case of Denel (Proprietary) Limited V/s. Ministry of Defence reported in (2012) 2 SCC 759.

It is prayed that the application be allowed and an Arbitrator be appointed to

resolve the dispute between the parties.

6. After hearing the learned advocates for the respective parties, I find it is

admitted that the dispute between the parties has to be resolved by the Arbitrator

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and Shri V. Thangapandian was appointed as the Arbitrator and he has resigned

from the post of Group General Manager of the non-applicant no.1 company on 29 th

August, 2015 because of which mandate of Arbitrator stood terminated.

The issue which is required to be adverted is as to whether the appointment

of Shri A.K. Nanda as the Arbitrator is proper or this Court has to exercise the

jurisdiction under Section 11(6) of the Act of 1996 and appoint an Arbitrator.

The submission made by the learned advocate for the applicant that the

non-applicant no.1 lost its right to appoint the Arbitrator having failed to appoint the

Arbitrator within 30 days after the mandate of earlier Arbitrator stood terminated, will

not be relevant in the facts of the present case. The applicant has not made any

request to the non-applicant no.1, after 29 th August, 2015, to appoint an Arbitrator.

Though the applicant has filed the present application under Section 11 of the Act of

1996, on or about 28 th September, 2015, the applicant has not taken any steps to

circulate the matter and obtain the orders on the application till Shri A.K. Nanda is

appointed as the Arbitrator. Even after Shri A.K. Nanda - new Arbitrator has

entered the office, the applicant has not brought on the record of the present

application the subsequent developments and filed the application under Section 9

read with Section 14 and 12(5) of the Act of 1996 before the District Court seeking

termination of mandate of the Arbitrator (Shri A.K. Nanda) on the ground that he is

interested in the non-applicant no.1 company and that he is not eligible to be

appointed as the Arbitrator.

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7. In the above facts, I am not inclined to entertain the application and the

prayer for appointment of Arbitrator specially when there is no prayer in the

application to remove the Arbitrator (Shri A.K. Nanda).

In view of my conclusions, the judgments relied upon by the learned

advocate for the applicant are not required to be considered.

The application is dismissed. In the circumstances, the parties to bear their

own costs.

At this stage, Shri Gosavi, learned advocate for the applicant has prayed for

liberty to take appropriate proceedings to seek redressal of the grievance of the

applicant. The applicant has the liberty to initiate appropriate proceedings to seek

termination of mandate of the Arbitrator (Shri A.K. Nanda) according to law.

JUDGE

Tambaskar.