Delhi High Court
Gurmukh Singh & Co. vs Municipal Corporation Of Delhi on 30 September, 2002
Author: R Chopra
Bench: R Chopra
JUDGMENT
R.C. Chopra, J.
1. This order shall dispose of the petitioner's
application under Sections 11(2)(6) of Arbitration and
Conciliation Act, 1996 (hereinafter referred to as "the
Act' only). The petitioner has prayed for appointment
of an Arbitrator on the ground that the respondent has
failed to appoint an Arbitrator in terms of Clause 25 of
the agreement dated 18.4.1996 between the parties. It
is pleaded that vide notice dated 18.12.2001, the
petitioner had requested the respondent to appoint an
Arbitrator in terms of the agreement, but the respondent
failed to appoint an Arbitrator within statutory period
and hence this petition. In its reply, field by way of
short affidavit, the respondent has opposed the prayer
of the petitioner for appointment of an Arbitrator under
Section 11 of the Act, mainly on the ground that the
legal notice dated 18.12.2001 stood superseded by letter
dated 27.12.2001 sent by the petitioner and as such, the
respondent was under no obligation to appoint an
Arbitrator.
2. I have heard learned counsel for the petitioner
and learned counsel for the respondent. I have gone
through the records.
3. In view of the decision of the Apex Court in
Konkan Railway Corporation Ltd. and Anr. v. Rani
Construction Pvt. Ltd., ,
the Chief Justice or his designate, while acting under
Section 11 of the Act, is under no obligation to
adjudicate any controversy between the parties in regard
to existence of the arbitration agreement, existence of
disputes or even in regard to failure to appoint an
Arbitrator within the period of thirty days. On the
basis of the correspondence between the parties and
documents on record the Chief Justice or his designate
has to see as to whether an Arbitrator has been
appointed or not within thirty days of the service of
notice and proceed to appoint the Arbitrator for
adjudication of the disputes between the parties. In
para-21 of the judgment, it was further observed that
in a given case, Chief Justice or his designate might
have nominated an Arbitrator although the period of
thirty days had not expired and if so, the Arbitral
Tribunal Tribunal would be improperly constituted and
without jurisdiction but then it would be open to the
aggrieved party to require the Arbitral Tribunal to rule
on its own jurisdiction in terms of Section 16 of the
Act. Therefore, a very limited role is assigned to the
Chief Justice or his designate in the matter of
appointment of an Arbitrator under Section 11 of the
Act.
4. In the present case, the respondent does not
dispute that a notice dated 18.12.2001 was issued by the
petitioner for appointment of an Arbitrator within
thirty days, but no Arbitrator was appointed. The
defense raised is that in its subsequent letter dated
27.12.2001, which is Annexure-I to the short affidavit
filed by the respondent, the petitioner had requested to
pay its final dues up to-date and had specifically
mentioned that the said letter superseded all its
earlier correspondence on the subject. A perusal of the
letter dated 27.12.2001 written by the petitioner to the
Executive Engineer does not show that the petitioner had
given up or withdrawn its request for appointment of an
Arbitrator, as contained in the notice dated 18.12.2001.
The letter dated 27.12.2001 was merely an intimation to
the concerned Executive Engineer that the petitioner was
not interested in carrying on with the work and wanted
its dues to be settled. It was nowhere mentioned in
this letter that the notice dated 18.12.2001 was being
withdrawn. Making a request for payment after asking
for appointment of Arbitrator did not tantamount to
withdrawal of request to appoint an Arbitrator.
Moreover, the notice dated 18.12.2001 was addressed to
the Commissioner, MCD, Delhi for appointment of an
Arbitrator in terms of the agreement whereas the letter
dated 27.12.2001 was addressed to the Executive Engineer
only, who neither had any authority to appoint an
Arbitrator nor could do anything in the matter of
non-appointment of an Arbitrator. This Court,
therefore, does not agree with the plea raised by the
respondent that in view of the letter dated 27.12.2001,
the respondent was under no obligation to appoint an
Arbitrator in response to the notice dated 18.12.2001.
5. Accordingly, the application is allowed and
Hon'ble Mr. Justice K. Ramamoorthy, a retired Judge of
Delhi High Court, is appointed Arbitrator for entering
upon the reference and adjudicating the disputes between
the parties arising out of the agreement dated
18.4.1996. The Arbitrator shall fix his own fee. The
parties to appear before the Arbitrator on 21.10.2002.
at 4.00 p.m. A notice be issued to learned Arbitrator
also.
6. Copy of this order be given dusty to learned
counsel for both the parties.
