Delhi High Court
Alcatel India Ltd. vs Bharat Sanchar Nigam Ltd. on 15 May, 2002
Author: M A Khan
Bench: M A Khan
JUDGMENT
Mahmood Ali Khan, J.
1. The petitioner has filed this application under
Section 11 of the Arbitration and Conciliation Act (the
Act) for appointment of an arbitrator for resolution of
the dispute which has arisen between the parties.
2. The respondent invited tender for supply of
certain equipments etc and the petitioner submitted the
tender. The parties entered into an arbitration
agreement dated 3.12.1998 which contained the terms and
conditions. One of the terms of agreement is for
reference of the dispute which arise out of and relating
to the work under the contract to an arbitrator to be
appointed by the respondent. The petitioner served a
notice dated 20.3.2001 invoking the arbitration clause
contained in the aforesaid agreement but the respondent
failed to refer the dispute for arbitration. Hence the
petition.
[ # ] AA 128/2001
3. Notice was issued to the respondent. The
respondent has filed a reply raising diverse pleas. But
in view of the decision of the larger Bench of the
Supreme Court in Konkan Railway Corporation Ltd. & anr.
Vs. Rani Construction Pvt. Ltd. 2002(1) SCALE 465 this
court in the instant proceedings will not decide any
contentious issue between the parties which may
appropriately be raised and decided before the
arbitrator in accordance with the provisions of the Act.
4. The only dispute which is relevant and
permissible to be raised in these proceedings is that
the notice dated 20.3.2001 invoking the arbitration
clause in the agreement has not been served on the
respondent. The petitioners have placed a copy of the
notice along with the postal registration receipt which
showed that the notice was sent to the correct address
of the respondent. There is a presumption of the due
service of the notice on the respondents. The
respondent in the reply does not specifically deny the
receipt of the notice but has alleged that it is not on
the record of the respondent. The counsel for the
petitioner has pointed out to the signature and the
stamp of respondent on the copy of the notice dated
20.3.2001 at page No. 73 of document file and the
signature and similar stamps appearing on the admitted
documents of respondent on file of OMP. No. 35/2001 which
was received from another bench for disposal of this
petition. The counsel for the respondent did not deny
that both signature and stamps were similar. The
notice as such has been duly served on the respondent.
5. The respondents have failed to appoint an arbitrator and
refer the dispute for decision by him within the
stipulated period of 30 days. The arbitrator was not
appointed by the respondent even before the present
petition was filed. Therefore, the respondent has lost
right to appoint an arbitrator (See Datar Switchgears
Ltd. Vs. Tata Finance Ltd. and another, (2000) 8 SCC
151)
6. The counsel for the petitioner has requested for
appointment of an independent arbitrator preferably a
former Hon'ble Judge of this High Court for adjudication
of the dispute which has arisen between the parties
under the agreement.
7. Keeping all the facts and circumstances in view I
appoint Mr. Justice N.C. Kochhar, a former Hon'ble Judge
of this High Court as an arbitrator and refer the
dispute which has arisen between the parties under the
agreement dated 31.12.1998 for decision by arbitration
in accordance with the provisions of the Act. The
arbitrator shall enter upon arbitration proceedings and
make and publish the award in accordance with law. The
parties shall submit their pleadings before the
arbitrator. The arbitrator shall be paid Rs.7,500/- per
sitting with a maximum of 10 sittings plus 10% of the
fee paid to him as secretarial assistance.
8. A copy of the order be sent to the arbitrator.
