Tarun Kanti Das vs Union Of India And Anr
2021 Latest Caselaw 144 Cal/2

OD-8


                               AP No. 319 of 2020
                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction


                              TARUN KANTI DAS
                                     VS.
                           UNION OF INDIA AND ANR.



BEFORE:
THE HON'BLE JUSTICE ARIJIT BANERJEE
Date: February 12, 2021.



                                                                    Appearance:
                                                        Mr. Amitava Ghosh, Adv.
                                                    Mr. Malay Kr. Das, Adv., Adv.
                                                     Mr. Sourav Chatterjee, Adv.

                                                       Ms. Aparna Banerjee, Adv.



            The Court: The petitioner seeks appointment of an independent sole

arbitrator in this application under Section 11(6) of the Arbitration and

Conciliation Act, 1996, for resolution of the disputes and differences that have

arisen between the petitioner and the respondent.

It is not in dispute that the petitioner was awarded a contract by the

Railways. It is also not in dispute that the contract between the parties

incorporated by reference the general terms and conditions of contract which

included an arbitration clause. Existence of the arbitration clause is not in

dispute.

It is also not in dispute that disputes have arisen between the

parties. The petitioner served notice under Section 21 of the Act of 1996 calling

upon the General Manager of the concerned Railways to appoint an arbitrator

in terms of the contractual arbitration clause. The time period for such

appointment expired but no such appointment was made.

Subsequently, i.e. after expiry of 30 days from the date of the Section

21 notice, the Railways served on the petitioner a notice of waiver of the

applicability of Section 12(5) read with Seventh Schedule of the 1996 Act. The

petitioner was not willing to do so. Accordingly, no appointment came to be

made although on 4th March, 2020, the Railways sent a panel of arbitrators to

the petitioner for selecting two names out of the same. Since the petitioner

already rejected the Railways' proposal for waiver of applicability of Section

12(5) of the 1996 Act, the petitioner naturally did not choose any of the names

from the panel forwarded by the Railways.

In the aforesaid factual background, the petitioner has filed the

instant application for appointment of a sole independent arbitrator.

I have heard learned counsel for the parties. I have considered the

decision of the Hon'ble Supreme Court in the case of Central Organisation for

Railway Electrification -vs- ECI-SPIC-SMO-MCML (JV) A Joint Venture Company

(2019 SCC OnLine SC 1635). I have also considered the order of the Hon'ble

Supreme Court passed on January 11, 2021 in the case of Union of India -vs-

M/s. Tantia Constructions Limited (Special Leave Petition No.12670/2020)

wherein a three Judges Bench has requested the Hon'ble Chief Justice of India

to constitute a Larger Bench to look into the correctness of the judgment in the

case of Central Organisation for Railway Electrification -vs- ECI-SPIC-SMO-MCML

(JV) (2019 SCC OnLine SC 1635).

Mr. Ghosh, learned advocate for the petitioner, has relied on the

decision of the Hon'ble Supreme Court in Perkins Eastman Architects DPC -vs-

HSCC (India) Ltd. (AIR 2020 SC 59).

I have considered the facts and circumstances of the case. The

petitioner did not agree to waive the applicability of Section 12(5) of the Act of

1996. The petitioner was well within his rights to do so. The concerned

arbitration clause does not contemplate as to what would happen if the

petitioner disagrees to waive the applicability of Section 12(5) of 1996 Act. In

such circumstances, in my opinion, the only way forward is for the Court to

appoint an independent arbitrator.

Accordingly, Justice Ranjit Kumar Bag (Retd.), a former Judge of this

Court (8335073594, 9433898375) is appointed as the sole arbitrator to

adjudicate the disputes and differences that have arisen between the parties in

relation to the subject contract. The arbitrator will be entitled to engage

secretarial staff for conducting the arbitral proceedings. Since no place of

sitting is agreed upon, let the arbitration proceeding be held in Calcutta. The

arbitrator will be free to fix his fees and the remuneration of the secretarial

staff. The fees of the arbitrator and the remuneration of the secretarial staff will

be paid by the parties in equal shares.

AP No. 319 of 2020 is, accordingly, disposed of.

(ARIJIT BANERJEE, J. )

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