Delhi High Court
Hospitech Management ... vs Director General Married on 25 August, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.08.2017
+ ARB.P. 44/2017
HOSPITECH MANAGEMENT CONSULTANTS P. LTD.
..... Petitioner
versus
DIRECTOR GENERAL MARRIED ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Udit Seth, Advocate.
For the Respondent : Mr. Praveen Kumar Jain and Mr. B.P. Maitra,
Advocates with Mr. I.P. Singh, Deputy Director
(contract)
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
25.08.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner by this petition under Section 11(6) of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as the
Act) seeks appointment of an Arbitrator.
2. On 22.05.2009, the petitioner was appointed as a Consultant to
provide Consultancy Services of Detailed Engineering and Project
Management Service to respondent for its project at Babina and
Saugar.
3. During execution of the work, certain disputes had arisen
leading to the termination of the contract and invocation of the
arbitration clause by the petitioner.
4. The arbitration clause between the parties reads as under:-
"ARTICLE 17 SETTLEMENT OF DISPUTES
All disputes, between the parties to the contract (other.
than those for which the decision of the DGMAP or any
other person is by the contract expressed to be final and
binding) shall, after written notice by either party to the
contract to the other of item, be referred to the sole
Arbitration of serving officer having degree in
Engineering or equivalent or having passed Final!
Direct Final Examination of Sub-Division II of
Institution of Surveyors (India) recognized by the Govt. of
India to be appointed by the Engineer-in-Chief, E-in-C's
Branch, Kashmir House, new Delhi-l l 0011 or Director
General of Works if specifically delegated in writing by
Engineer-in-Chief, Army Headquarters, New Delhi whose
decision shall be final, conclusive and binding. The
Arbitration shall be governed by Arbitration and
Conciliation. Act, 1996.
Unless both parties agree in writing, such reference shall
not take place until after the completion or alleged
completion of the Works or termination or determination
of the Contract under conditions of the contract.
Provided that in the event of abandonment of the works or
cancellation of the Contract under conditions of this
contract, such reference shall not take place until
alternative arrangements have been finalized by the owner
to get the works completed by or through any other
consultant or consultants as provided in conditions of this
contract.
If the Arbitrator so appointed resigns his appointment or
vacates his office or is unable or unwilling to act due to
any reason whatsoever, the authority appointing him may
appoint a new Arbitrator to act in his place.
The Arbitrator may proceed with the arbitration
exparte, if either party, in spite of notice from the
Arbitrator, fails to take part in the proceedings.
The Arbitrator shall give his reasoned award in Writing
on all matters referred to him and shall indicate his
findings, along with sums awarded/separately on each
individual item of dispute.
The venue of arbitration shall be such place or places as
may be fixed by the Arbitrator in his discretion. .
The language of the arbitration proceedings and that of
all documents any communications between the parties
shall be "English".
The award of the Arbitrator shall be final and binding
on both the parties to the contract.
Notwithstanding the fact that the stations of work are
anywhere in India, only the courts at Delhi/New Delhi
shall have the jurisdiction to adjudicate and settle any
disputes between OWNER and the consultant, No other
court outside Delhi/New Delhi shall have any
jurisdiction on any matter requiring reference to Civil
Court.
5. The petitioner invoked the arbitration clause by notice dated
19.07.2016 followed by notice dated 04.10.2016.
6. Learned counsel for the petitioner submits that though the
arbitration clause prescribes that the arbitration shall be by a Sole
Arbitration of a serving officer having a degree in Engineering, he
submits that a serving officer would be disqualified under Section
12(5) of the Act, as amended by the Arbitration & Conciliation
(Amendment) Act, 2015.
7. Learned counsel for the respondent submits that he has no
objection to the appointment of an independent sole Arbitrator
provided the Arbitrator satisfies the other requirement i.e. having a
degree in Engineering or equivalent, as described by the clause.
8. In view of the above, Mr. Bhupesh Narula, Advocate, (Mobile
No. 9810260246), who also has a degree in Engineering and satisfies
the requirements of the Clause, is appointed as the Arbitrator to
adjudicate the disputes between the parties. This is subject to the
Arbitrator making the necessary disclosures under Section 12 of the
Act of not being ineligible under Section 12(5) of the Act.
9. The Arbitrator shall adjudicate the claims of the petitioner and
the counter claims, if any of the respondents.
10. The fee of the Arbitrator shall be as per the Fourth Schedule of
the Arbitration & Conciliation Act, 1996, as stipulated in the contract.
11. Venue of the arbitration shall be fixed by the arbitrator at his
discretion subject to the convenience of the parties.
12. The parties are at liberty to approach the learned Arbitrator for
elucidating the necessary disclosures and for further proceedings.
13. The petition is, accordingly, disposed of in the above terms.
14. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
AUGUST 25, 2017
st
