Sarvesh Chopra Builders Pvt. Ltd. vs Union Of India & Anr.
2009 Latest Caselaw 3682 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  A.A. No.166/2009

%                                 Date of decision:10.09.2009

SARVESH CHOPRA BUILDERS PVT. LTD.                     ....Petitioner
                        Through: Mr. Kirti Uppal with Mr. Sanjeet Singh,
                                 Advocates.

                                Versus

UNION OF INDIA & ANR.                               ... Respondents

                        Through: Mr. Asish Mohan, Advocate.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                 No

2.    To be referred to the reporter or not?          No

3.    Whether the judgment should be reported         No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The counsel for the respondent Union of India/Railways states

that reply is ready and will be filed in the course of the day. The

reply has been taken on record in the court and be kept on the file.

The counsels have been heard.

2. The petitioner has preferred this application under Section

11(6) read with Section 14 of the Arbitration Act, 1996 for

appointment of an independent sole arbitrator. The arbitration

clause is in terms of clause 63-64 of the General Conditions of

Contract of the Railways whereunder when the claims are for more

than 5 lacs, as they are in the present case, the arbitration is of the

panel of three arbitrators being the gazetted Railways Officers; the

manner of appointment of the said Arbitral Tribunal is also provided

therein.

3. The case has a chequered history and as contended by the

counsel for the petitioner, the petitioner has had to approach this

court several times, last being Arbitration Petition No. 98/2008

decided on 22nd May, 2008. Vide that order the name of Shri J.R.

Meena, Gazetted Railway Officer as a nominee of the petitioner, was

ordered to be included in the Arbitral Tribunal and in view of the

long pendency of the matter it was further directed that the Arbitral

Tribunal shall try to dispose of the proceedings preferably by the end

of December, 2008. This petition has been preferred in March, 2009

inter alia on the ground that the tribunal has failed to act without

undue delay. It was contended that inspite of the order aforesaid of

this court the arbitration proceedings have not commenced as yet.

4. The respondent railways has in its reply stated facts as to why

the Arbitral Tribunal could not meet; it is stated that the tribunal

being of the Gazetted Railways Officers, the said officers were held

up in their other official duties of pressing nature. It is further

informed that the Arbitral Tribunal has now issued directions for the

petitioner to file the claim but which the petitioner did not file

perhaps for the reason of institution of this petition. The counsel for

the respondent/railways states that the Arbitral Tribunal is willing to

conclude the arbitral proceedings within such reasonable time as

may be fixed by this court.

5. The counsel for the petitioner though has contended that in the

facts and circumstances he has become entitled to the appointment

of an independent arbitrator under the provision of Section 11(8)(b)

of the Act but for the sake of expediency and subject to the Arbitral

Tribunal completing the proceedings within the time ordered by this

court, he is willing to proceed with the Arbitral Tribunal as

constituted.

6. Upon inquiry it is informed that considering the nature of the

claims, the period of nine months would be reasonable time for

conclusion of the arbitral proceedings.

7. Accordingly, this petition is disposed of with the direction that

the arbitral proceedings be definitely concluded on or before 30

June, 2010. It is clarified that even if any member of the Arbitral

Tribunal is unable to continue as the arbitrator he shall be

substituted immediately in accordance with the procedure / law and

the same shall not be a ground for seeking extension of the time

aforesaid. It is further clarified that if it is found that the Arbitral

Tribunal for reasons not attributable to the petitioner does not

conclude the proceedings within the time aforesaid, the petitioner

shall become entitled to seek appointment of a sole independent

arbitrator.

RAJIV SAHAI ENDLAW (JUDGE)

September 10, 2009 M