Sarvesh Chopra Builders Pvt. Ltd vs Union Of India & Ors
2009 Latest Caselaw 3940 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       A.A.No.167/2009

%                                 Date of decision:24.09.2009

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

                                Versus

UNION OF INDIA & ORS.                               .. Respondents
                        Through: Mr. A.S. Dateer, Advocate for the
                                 Respondents No.1&2.



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 petition is under Section 11 of the Act. The case has a

chequered history. The petitioner filed suit No.2868/1994 under

Section 20 of the Arbitration Act, 1940. The same was disposed of

along with several other suits vide order dated 6th November, 2000

with a direction to the General Manager of the respondent Northern

Railway to appoint the arbitrator. Though in the typed copy of the

order filed along with these petitions the direction is for appointment

of arbitrator "in terms of Clause 16 of the agreement" it appears that

the reference to Clause 16 is a typographical error. Though the

petitioner has along with this petition not filed the arbitration clause

but it is the admitted position that the arbitration clause relied upon

is as contained in the General Conditions of contract of the Railways.

In the said order dated 6th November, 2000 it has also been held that

the arbitration proceedings will be governed by the Arbitration Act,

1996 between the parties.

2. It is also the admitted position that one Mr. S.K.Puri was

appointed as the arbitrator pursuant to the aforesaid order dated 6th

November, 2000.

3. Arbitration Petition No.122/2007 U/s 11 of the 1996 Act came

to be filed by the petitioner relating to the same arbitration

agreement and disputes. The same was disposed of on 22nd February,

2008. Vide said order, in view of Mr. S.K. Puri being not available for

arbitration, Ms. Tarika Roy was appointed as the arbitrator.

4. The petitioner has now filed this petition contending that upon

the said Ms. Tarika Roy also being unable to act, the respondent

appointed one Mr. Naveen Gulati as the arbitrator, who has also

failed to act and hence he seeks the appointment of an independent

sole arbitrator.

5. The respondent has contested the petition on three grounds.

Firstly, it is contended that the petition under Section 11 of the

Arbitration Act, 1996 is not maintainable as the disputes between the

parties arose under the 1940 Act and since suit under Section 20 of

the 1940 Act was initially filed. Secondly, it is denied that Mr.

Naveen Gulati was appointed as the arbitrator in this case. It is

contended that Mr. Naveen Gulati was appointed in arbitration

proceedings between the petitioner and the respondent under some

other contract. Lastly, it is contended that as per the arbitration

clause in the General Conditions of Contract of the Railways,

arbitration is to be by a panel of three arbitrators of which one is to

be selected by the contractor i.e. the petitioner herein and the other

two by the respondent. It is stated that Mr. S.K.Puri & Ms. Tarika

Roy aforesaid were but one of the panel of arbitrators and not the

sole arbitrator and the arbitration is to be in accordance with the

arbitration clause in the agreement between the parties.

6. As far as the first of the aforesaid submissions is concerned, in

view of the order dated 6th November, 2000 expressly holding that

the arbitration shall be governed by the 1996 Act and which order

has attained finality between the parties, it is now not open to the

respondent to contest the said position. Not only so, thereafter

application under Section 11 of the Act as aforesaid was entertained

in the same arbitration agreement/proceedings. The order dated 22nd

February, 2008 disposing of the same does not show that any

opposition was made by the respondent Railways at that time to the

applicability of the 1996 Act.

7. As far as the other two contentions of the respondent are

concerned, the counsel for the petitioner has stated that for the sake

of expediency, he has no objection if the arbitration is by a panel of

three arbitrators as contended by the counsel for the respondent and

that the petitioner be permitted to now nominate one member from

the panel of the arbitrators of the respondent and the respondent

Railways be directed to nominate the other two arbitrators within a

time bound schedule and further subject to the arbitration

proceedings being concluded in a time bound manner.

8. Accordingly, this petition is disposed of with the directions; (i)

that the respondent shall within four weeks hereof deliver to the

counsel for the petitioner the list of arbitrators in its panel; (ii) the

petitioner shall within ten days thereof nominate one arbitrator from

the said panel; (iii) the respondent Railways shall within two weeks

thereafter appoint/nominate the other two arbitrators; (iv) the

Arbitral Tribunal so constituted to conclude the arbitration

proceedings within one year of the date of first appearance of the

parties before the Arbitral Tribunal; (v) if there is any earlier arbitral

record, the respondent Railways to ensure that the same is delivered

to the Arbitral Tribunal so constituted before the date of the first

appearance.

RAJIV SAHAI ENDLAW (JUDGE)

September 24th, 2009 pp