Parnika Commercial & Estate (P) ... vs Union Of India
2016 Latest Caselaw 5905 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Order delivered on: 8th September, 2016

+                    ARB. P. No.468/2016

        PARNIKA COMMERCIAL & ESTATE (P) LTD.     ..... Petitioner
                     Through    Mr.Bhupesh Narula, Adv. with
                                Mr.Gaurav Wadhwa, Adv.


                         versus


        UNION OF INDIA                                  ..... Respondent
                         Through     Mr.Praveen Kr. Jain, Adv. along
                                     with Mr.Akhilesh Shukla, Director
                                     (Contract), in person.

        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. The brief facts of the case as per the petitioner are that the respondent invited the tender for the work of development of 'Provision of Married Accommodation for ORS (192 DUs) and JCOs (272 DUs) and allied External Services with source development at Basantar Line Delhi (Package-II) Delhi and the tender of the petitioner was accepted on 19th December, 2005 for which an agreement was also executed between the parties on 19th December,

2005 vide Agreement No. DG MAP/Delhi/B-Line/Phase-I/T-1B/09 of 2005-06 for an amount of Rs.41,30,11,378.33/-.

3. The date of commencement of the work was 26th December, 2005 and completion in two phases with stipulated dates of completions were 25th August, 2006 and 30th September, 2008 phase-I and phase-II respectively.

4. Certain disputes arose between the parties out of the said contract during execution of the work and the petitioner invoked Arbitration condition 60 of the General Conditions of the Contract, forming part of the contract and requested the appointing authority (Engineer-in-Chief) on 16th December, 2010 to appoint an Arbitrator to adjudicate the disputes as the contract was an Arbitration Contract. The petitioner raised total 19 claims.

5. The Engineer-in-Chief appointed Sh. S.S. Bansal, CE(QS&C) as sole Arbitrator on 7th March, 2011 to adjudicate the disputes.

6. The Arbitrator entered into reference on 10th June, 2011 and called upon the parties to submit statement of claims, defence statements and relevant documents etc.

7. The Arbitrator in the hearing held on 10th and 11th May 2016 brought out the following as recorded in the minutes:

"On the delay in conduct of case, arbitrator handed over a copy of his DO letter bearing no.19425/SSB-Gen/ 118/EB dated 12 March 2015 wherein arbitrator sought permission from Appointing Authority to recuse himself from these cases. The office of Appointing Authority did not reply his letter. After waiting for reply of the DO letter for 3 months or so from the office of Appointing Authority till June 2015, the arbitrator who was working as JT DG(C) in CEWC was over busy on 5 years cyclic renewal

of enlistment of contractors. This activity continued upto 30 April 2016. Thus there was delay in conduct of cases"

8. The next date of hearing fixed by the Arbitrator was 15th June, 2016 and indicated that he shall endeavour publication of the award by 30th September, 2016. The Arbitrator instead of holding the hearing on the due date withdrew himself as an Arbitrator from the matter by letter dated 16th May, 2016.

9. It is contended by the petitioner that under certain circumstances the Arbitrator preferred to withdraw from the case. The petitioner wrote a letter dated 28th May, 2016 to the respondents as the petitioner has now lost faith in the department Arbitrators. The petitioner therefore requested the appointing authority (Engineer in Chief) on 11th June, 2016 to appoint an independent Arbitrator within the stipulated period of 30 days. But the respondent failed to appoint a new Arbitrator within the statutory time of 30 days and therefore, the respondent has lost its right to appoint an Arbitrator.

10. After hearing the learned counsel for the respondent who virtually controverted the prayer and upon instructions from his client, who is present in Court, submits that let an independent sole Arbitrator be appointed to adjudicate the disputes between the parties but in connected matter a different sole Arbitrator be appointed. I do not agree with the suggestion given by the respondent's counsel as in the connected matter only the contract between the parties is different, otherwise parties, facts and legal issues involved are the same.

11. Thus, the prayer made in the present petition is allowed.

12. Accordingly, Justice V.K. Shali, retired Judge of this Court (Mobile No.9717495000) is appointed as sole Arbitrator to adjudicate the disputes arising out of the agreement in question between the parties as mentioned in the present petition. The parties are also allowed to file their respective claims and counter-claims before the Arbitrator.

13. The Arbitrator shall ensure the compliance of the provisions of Arbitration and Conciliation (Amendment) Act, 2015 before commencing the arbitration. The fees of the learned Arbitrator shall be in terms of the schedule of the amended Act. The parties to appear before the Arbitrator on 29th September, 2016 for directions.

14. The petitions are accordingly disposed of.

15. Copy of this order be given dasti to the learned counsel for the parties and a copy thereof be delivered to the learned Arbitrator forthwith.

(MANMOHAN SINGH) JUDGE SEPTEMBER 08, 2016