M/S Rakesh Brothers vs Areva T & D India Ltd.
2013 Latest Caselaw 1095 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: March 05, 2013

+                            Arb.P. No. 265/2012

       M/S RAKESH BROTHERS                                 ..... Petitioner
                    Through             Mr.Avinash.K. Trivedi, Adv.


                    versus

       AREVA T & D INDIA LTD.                              ..... Respondent
                     Through            None.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The petitioner has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator.

2. It is the case of the petitioner that petitioner submitted tender application for Civil & Building Works at DIAL Project, IGI Airport, New Delhi, on 29th April, 2008 recorded as P.O. bearing No.7900002497 dated 9th June, 2008. The contractual amount was revised to `17,27,12,945/- from initial contractual amount of `8,53,96,880/-. As per the agreement, the work was to be completed within six months of date of singing of the letter of intent which was signed on 29th April, 2008. However, the work was completed on September, 2009. It is further stated that a meeting was held on 19th April, 2010 between parties and all issues were resolved and decided that the respondent will pay a total amount of `39,49,433/- along with

security amount of `84 lac. Thereafter the petitioner had written a letter dated 6th March, 2011 in which a demand was raised with regard to the dues payable by the respondent. It is claimed by the petitioner in the petition that `1,23,49,333/- along with interest is payable by the respondent to the petitioner which has not been paid despite of repeated demands. Finally the petitioner sent a legal notice dated 30th May, 2012 thereby calling upon the respondent to pay the said amount and invoked the arbitration clause i.e. Clause No.23.4 of the agreement for appointment of an impartial sole arbitrator to adjudicate the dispute between the parties. Since the respondent has failed to pay the said amount or appoint a sole arbitrator to adjudicate the dispute between the parties within the stipulated period, the present petition has been filed.

3. Notice of the petition was served upon the respondent and the counsel for the respondent appeared on 4th September, 2012 and four weeks were granted to the respondent for filing the reply. However, no reply to the petition has been filed. When the matter is taken up today, no one is present on behalf of the respondent. Learned counsel for the petitioner has produced copy of reply dated 4th July, 2012 given by the respondent to legal notice dated 30th May, 2012 wherein the respondent has denied the claim of the petitioner.

4. From the aforesaid, it is clear that a binding arbitration agreement is in existence between the parties and the claims appear to be live from the correspondence placed on record. Since the respondent has failed to appoint an arbitrator within stipulated time, the present petition is allowed. Accordingly, Justice K.S. Gupta, retired Judge of this Court (Mobile No.9868095873/26691366) is appointed as sole Arbitrator to adjudicate the

disputes between the parties arising out of the agreement dated 9th June, 2008 to be conducted under the aegis of Delhi High Court Arbitration Centre. The fees of the Arbitrator be also paid under the said Rules.

5. The petition is accordingly disposed of.

6. Copy of this order be communicated to the learned Arbitrator as well as the Secretary to the Arbitration Centre forthwith. Copies of the same be also given dasti to the learned counsels for the parties.

(MANMOHAN SINGH) JUDGE MARCH 05, 2013