Bombay High Court
M/S. Arss Atlanta (Jv), ... vs Rites Limited, Nagpur, Through ... on 27 June, 2016
Bench: Z.A. Haq
1 mca534.16.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISCELLANEOUS CIVIL APPLICATION NO.534/2016
M/s. ARSS ATLANTA (JV)
Plot No.38, Sector A, Zone D,
Mancheswar Industrial Estate,
Bhubaneshwar, through its Power of
Attorney, Rajesh Agrawal s/o Shri
M.L. Agrawal, Managing Director,
ARSS Infrastructure Projects Ltd.
Address - Plot No.38, Sector A,
Z1D, Mancheswar Industrial Estate,
Bhubaneshwar. ..Applicant.
..VS..
1. RITES Limited,
through its Group General Manager (P)
RITES Bhavan, Kadbi Chowk, Nagpur.
2. The CSPGCL,
through its POA Holder, GGM (P),
RITES, RITES Bhavan, Kadbi Chowk,
Nagpur.
3. The Director (Projects),
RITES Ltd., RITES Bhavan,
Gurgaon, Haryana, 122 002. ..Non-applicants.
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Shri Rahul Tajne, Advocate for the applicant.
Shri R.M. Parate, Advocate for non-applicant Nos.1 and 3.
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CORAM : Z.A.HAQ, J.
DATED : 27.6.2016.
ORAL JUDGMENT
1. Heard Shri Rahul Tajne, Advocate for the applicant and Shri R.M. Parate,
Advocate for the non-applicant Nos.1 and 3.
2 mca534.16.
2. Rule. Rule made returnable forthwith.
3. The applicant has filed this application under Section 11 of the Arbitration and
Conciliation Act, 1996 contending that the dispute between the parties is required to
be resolved out by arbitration as per Clause 46.17 of the General Conditions of
Contract and inspite of notice issued by the applicant on 29 th January, 2016,
requesting the non-applicants to refer the matter to Arbitrator no steps are taken. It
is prayed that an Arbitrator be appointed for resolving the dispute between the
parties.
The learned Advocate for the non-applicant Nos.1 and 3 has submitted that Shri
S.M. Khare, Ex-General Manager, N.T.P.C. Limited is appointed as Arbitrator on 20 th
June, 2016 and he has issued the notices to the parties on 23 rd June, 2016 informing
the parties that the first meeting will be held on 15 th July, 2016. It is submitted that in
view of the above, the application filed by the applicant has become infructuous and
it be dismissed.
Shri Tajne, Advocate for the applicant has pointed out that as per Clause 25 of
the General Conditions of Contract the non-applicants were required to appoint an
Arbitrator within 30 days on receipt of notice sent by the applicant. It is submitted
that the notice issued by the applicant on 29 th January, 2016 is received by the non-
applicants on 4th February, 2016 and as non-applicants have not taken any steps to
appoint Arbitrator within stipulated time, they have forfeited the right to appoint
Arbitrator. In support of the submission, reliance is placed on the judgment given in
the case of Deep Trading Company V/s. Indian Oil Corporation and others reported in
(2013) 4 SCC 35.
3 mca534.16.
To counter the submissions made on behalf of the applicant, the learned
Advocate for the non-applicant Nos.1 and 3 has relied on the judgment given in the
case of Union of India V/s. Premier Files Limited reported in (2009) 9 SCC 384 and
has submitted that as the non-applicants have appointed an Arbitrator and the
Arbitrator has entered his appearance, it will not be appropriate for this Court to
appoint the Arbitrator.
Considering Clause 25 of the General Conditions of Contract and the
proposition laid down in the judgment given in the case of Deep Trading Company
V/s. Indian Oil Corporation and others (cited supra), it has to be held that the non-
applicants have forfeited their right to appoint the Arbitrator. The facts on the
record show that the non-applicants have appointed the Arbitrator after receiving the
notice of this application. The dispute between the parties is required to be resolved
by an Arbitrator. The claim made by the applicant is covered by the arbitration
clause. It cannot be said that the claim made by the applicant is a stale claim. It is
undisputed that the cause of action has arisen at Nagpur and this Court has
jurisdiction to entertain and decide the present application.
Hence, the following order:
(i) Shri A.P. Deshpande, former Judge of this Court is appointed as an Arbitrator to
resolve the dispute between the parties.
(ii) The applicant and non-applicant No.1 shall deposit Rs.50,000/- (Rs. Fifty
Thousand Only) each towards security for the fees of the learned Arbitrator, within
four weeks with the Registry of this Court.
This amount shall be kept with the Registry of this Court till the Arbitration
proceedings culminate.
4 mca534.16.
(iii) The applicant and non-applicants shall pay the fees of the learned Arbitrator
directly.
(iv) The applicant shall deposit Rs.5,000/- (Rs. Five Thousand Only) towards
processing charges with the Registry of this Court within four weeks.
(v) The application is allowed in the above terms.
(vi) In the circumstances, the parties to bear their own costs.
ig JUDGE
Tambaskar.
