Satish Builders vs The Chairman, Airport Authority ...
2007 Latest Caselaw 953 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner has filed the present petition under Section 11(2) and (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) seeking appointment of an arbitrator in view of the disputes having arisen between the parties. The petitioner was awarded the building work including of electrical installation conduiting, wiring etc. vide letter dated 2.8.2005 for a tendered amount of Rs. 7,26,83,509.82 The work had to be completed within nine months from 11.8.2005. The date of completion, thus, was 10.5.2006.

2. It is the case of the petitioner that the work could not be completed in time due to hindrance of the respondent. The civil work was completed on 25.1.1996 and electrical work on 10.10.2006.

3. In view of the claims of the petitioner not being settled, the petitioner invoked the arbitration Clause 25 contained in the contract and served the notice upon the respondent on 19.2.2007. The respondent did not take any action within 30 days and, thus, the present petition was filed on 3.4.2007. Notice was issued on 16.4.2007 returnable for today. It is thereafter only on 7.5.2007 that the respondent has appointed an arbitrator.

4. Learned Counsel for the petitioner states that the appointed arbitrator is not acceptable to the petitioner and that an arbitrator be appointed by this Court in view of the respondent having lost their right to make an appointment, 30 days having elapsed.

5. The only submission advanced by learned Counsel for the respondent is that the due process in the Government takes more time. Unfortunately for the respondent the Arbitration and Conciliation Act, 1996 does not make an exception to cases of the Government so far as the appointment of arbitrator is concerned.

6. The legal position is quite settled in view of a Full Bench judgment of this Court in HBHL-VKS (J.V.) v. Union of India 2007(1) Arbitration Law Reporter 252 that where the designated authority does not appoint an arbitrator within 30 days or at best prior to filing of a petition under Section 11(6) of the said Act, such right is lost. The facts of the present case show that the notice was received by the respondent on 19.2.2007. The present petition was filed on 3.4.2007 and the arbitrator was appointed on 7.5.2007. The concerned authority has, thus, lost the right to appoint the arbitrator.

7. In view of the aforesaid, I deem it appropriate to appoint Mr. Justice (Retired) O.P. Verma, D-32, Panchsheel Enclave, New Delhi (Mob.) 9350183833/Tel. 0120-2822600 as the sole arbitrator. The arbitrator will fix his own sitting fee apart from the out-of-pocket expenses. The fee shall be shared equally by both the parties. The total fee is, however, subject to a cap of Rs. 2.50 lacs.

8. The petition stands disposed of.

9. Copy dusty to learned Counsel for the parties.

10. A copy of the order be sent expeditiously to the named arbitrator.