Calcutta High Court
Golden Edge Engineering Pvt. Ltd vs Bharat Heavy Electricals Limited on 1 March, 2022
ORDER OD-17
AP/372/2021
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
GOLDEN EDGE ENGINEERING PVT. LTD.
VERSUS
BHARAT HEAVY ELECTRICALS LIMITED
BEFORE:
THE HON'BLE CHIEF JUSTICE PRAKASH SHRIVASTAVA
DATE : 1ST MARCH, 2022
[Via Video Conference]
APPEARANCE:
Mr. Shadan Farasat, Advocate
Ms. Sucharita Roy, Advocate
Ms. Jhuma Sen, Advocate
Mr. Shourya Dasgupta, Advocate
..for petitioner
The Court:- No one is present for the respondent in spite of service.
This application has been filed under Section 11(6) of the Arbitration
and Conciliation Act, 1996 for appointment of the arbitrator.
The case of the applicant is that the NIT dated 20th February, 2018
was issued by the respondent for awarding the Contract for construction on
EPC basis for North Karanpura Super Thermal Power Plant. The respondent
had initially issued the LOI dated 23rd April, 2018 and thereafter on 10th
January, 2019, Work Order was issued in favour of applicant. Both the NIT as
also the Work Order contain identical arbitration clause and some dispute had
arisen between the parties, therefore, applicant had initially issued the notice
dated 12th June, 2020 invoking the arbitration clause and proposing the name
of the arbitrator, a reply to which was given by the respondent on 15th June,
2020 stating that the respondent had the sole authority to appoint the
arbitrator in terms of the arbitration clause. The applicant thereafter had sent
the fresh notice for arbitration dated 27th October, 2020 placing reliance upon
the judgment of the Hon'ble Supreme Court in the matter of Perkins Eastman
Architects DPC & Anr. Vs. HSCC, reported in 2019 SCC Online SC 1517 and
disputing the sole right of the respondent to appoint the arbitrator, also putting
forth the claim in monetary terms and making a prayer to appoint the
arbitrator from the panel of arbitrators suggested in that notice. Thereafter,
communication dated 17th November, 2020 in response to the respondent's
response dated 5th November, 2020 was sent and when the arbitrator was not
appointed, the present AP has been filed.
The Work Order contains the following arbitration clause:-
"55.3.Except as provided elsewhere in this Contract, in case amicable
settlement is not reached between the Parties, in respect of any
dispute or difference, arising out of the formation, breach, termination,
validity or execution of the Contract, or, the respective rights and
liabilities of the Parties, or, in relation to interpretation of any provision
of the Contract, or, in any manner touching upon the Contract, then,
either Party may, by a notice in writing to the other Party refer such
dispute or difference to the sole arbitration of an arbitrator appointed
by head of the BHEL Power Sector Region issuing the Contract. It shall
not be open to you to object to such arbitrator only on the ground that
such arbitrator is an employee/ex-employee of BHEL or has dealt with
or has expressed any opinion on any issue touching upon the
Contract.
The arbitrator shall pass a reasoned award and the award of the
arbitrator shall be final and binding upon the Parties.
Subject as aforesaid, the provisions of Arbitration and Conciliation Act,
1996 (India) or statutory modifications or re-enactments thereof and
the rules made thereunder and for the time being in force shall apply
to the arbitration proceedings under this clause. The seat of arbitration
shall be Kolkata (the place from where the contract is issued)."
In spite of service of notice, respondent has not appeared and has not
chosen to oppose the arbitration agreement nor has the prayer for appointment
of the arbitrator been opposed before this court.
It is pointed out by learned counsel for the applicant that the
applicability of Sub-section 5 of Section 12 has not been waived subsequent to
the dispute by any express agreement in writing.
Having regard to the above undisputed position and in view of the
judgment of the Hon'ble Supreme Court in the matter of Perkins Eastman
Architects DPC (Supra), I am of the opinion that a case for appointment of the
sole arbitrator for resolving the dispute between the parties is made out.
Accordingly, I propose the name of Justice Taufique Uddin, retired Judge of
this Court for appointment as arbitrator.
Let his declaration in terms of Section 12(1) in the Form prescribed in
the Sixth Schedule of the Act be obtained by the Registrar, Original Side.
List on 5th April, 2022.
(PRAKASH SHRIVASTAVA, C.J.)
sm/akg
