Delhi High Court
The Krishna Construction Co. vs Union Of India (Uoi) on 24 November, 2004
Equivalent citations: 2005 (1) ARBLR 182 Delhi, 115 (2004) DLT 653
Author: M Mudgal
Bench: M Mudgal
JUDGMENT
Mukul Mudgal, J.
IA. No. 6582/02 (under Section 151 CPC)
1. It has not been disputed by the learned counsel for the petitioner that on 19th November, 2001 the remaining claims apart from the 11 claims of the petitioner have been referred to Dr. Y.P.C. Dangay, Arbitrator for adjudication. But this Court was not informed that Dr. Y.P.C. Dangay has already resigned on 21st June, 2001. Since no arbitrator was thereafter appointed, the petitioner has approached this Court by way of an application filed under Section 151 of the CPC which in sum and substance is an application under Section 11 of the Arbitration & Conciliation Act, 1996 and is treated as such.
2. It has been submitted by Mr. Kapur that on 29th November, 2001 another arbitrator, Shri A.K. Bhatnagar was appointed in place of Dr. Y.P.C. Dangay by letter No. 15(56)/98-A&C/Z-III/3682 dated 29th November, 2001. It has also been stated in reply on behalf of the respondents that Mr. A.K. Bhatnagar has also since resigned and another arbitrator, Shri A.K. Singhal was also appointed as Sole Arbitrator by Chief Engineer, PWD Zone-III (NCTD). The reply however omits the date of the appointment of the arbitrator, Shri A.K. Singhal as Sole Arbitrator. Since the learned counsel for the respondent is not present in Court today it has to be presumed that the appointment of Shri Singhal was made after this Court had issued notice in this application on 31st July, 2002. Accordingly as per the law laid down in Datar Switchgears Ltd. v. Tata Finance Ltd. & Another reported as JT 2000 (Suppl.2) SC 226, the petitioner is entitled to succeed in the petition.
3. This position of the law laid down by this Court and the Hon'ble Supreme Court as extracted above is categorical. Therefore once the party moves the Court under Section 11(6) of the Act, the right of the opposite party to appoint an arbitrator as per the arbitration agreement ceases. The above position of law squarely applies to the present case. The respondent's right to appoint an arbitrator stood extinguished on 31st July, 2002, the date when the petitioner approached this Court under Section 11(6) of the Act and the appointment of Shri A.K. Singhal sought to be made on a date which is not disclosed by the respondents is of no avail and is accordingly set aside.
4. Accordingly petition is allowed and Mr. Justice T.P.S. Chawla, a retired Chief Justice of this Court, E-338, East of Kailash, New Delhi-110065(Tel.26461041, 26460779) is appointed as the arbitrator. The parties to appear before the Arbitrator on 4th January, 2005 at 4.00 PM or any other date found to be suitable to the learned Arbitrator. The Arbitrator to fix his fees in consultation with the parties. The learned Arbitrator is requested to give his award, not later than 6 months from the first date of the hearing.
5. This petition stands allowed and disposed of accordingly in the above terms.
