Delhi High Court
Hindustan Construction Company ... vs Indian Strategic Petroleum ... on 24 July, 2017
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24.07.2017
+ ARB.P. 403/2017
HINDUSTAN CONSTRUCTION COMPANY LTD. ..... Petitioner
versus
INDIAN STRATEGIC PETROLEUM RESERVES LIMITED
..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms. Malvika Lal, Advocate.
For the Respondent : Ms. Madhrui Yadav, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
24.07.2017
SANJEEV SACHDEVA, J. (ORAL)
IA No.7029/2017 (exemption)
Exemption is allowed subject to all just exceptions.
ARB.P. 403/2017
1. The petitioner, by the present petition, under Section 11 of the
Arbitration & Conciliation Act, 1996 seeks appointment of an
independent sole arbitrator to adjudicate the disputes between the
parties arising out of a contract dated 30.07.2010.
2. The petitioner was awarded a contract for execution of civil
works for underground rock caverns (Part-A) for strategic storage of
crude oil project at Padur, Karnataka, the subject project. A formal
contract agreement was executed between the parties on 30.07.2010.
3. Disputes have arisen between the parties. On 24.02.2017, the
petitioner invoked the arbitration clause.
4. The arbitration clause, as contained in the General Conditions
of Contract, applicable to the subject contract, reads as under:-
"9.0.0.0 Arbitration
9.0.1.0 Subject to the provisions of Clauses 6.7.1.0, 6.7.2.0 and
9.0.1.1 hereof, any dispute arising out of a Notified Claim
of the CONTRACTOR included in the Final Bill of the
CONTRACTOR in accordance with the provisions of
Clause 6.6.3.0 hereof, if the CONTRACTOR has not opted
for the Alternative Dispute Resolution Machinery referred
to in Clause 9.1 1 0 hereof, and any dispute arising out of
any Claim(s) of the OWNER against the CONTRACTOR
shall be referred to the arbitration of a Sole Arbitrator
selected in accordance with the provisions of Clause
9.0.1.1 hereof. It is specifically agreed that the OWNER
may prefer its Claim(s) against the CONTRACTOR as
counter-claim(s) if a Notified Claim of the CONTRACTOR
has been referred to arbitration. The CONTRACTOR shall
not, however, be entitled to raise as a set-off defence' or
counter-claim any claim which is not a Notified Claim
included in the CONTRACTOR's Final Bill in accordance
with the provisions of Clause 6.6.3.0 hereof.
9.0.1.1 The Sole Arbitrator referred to in Clause 9.0 1.0 hereof
shall be selected by the CONTRACTOR out of a panel of 3
(three) persons nominated by the OWNER for the purpose
of such selection, and should the CONTRACTOR fail to
select an arbitrator within 30 (thirty) days of the panel of
names of such nominees being furnished by the OWNER
for the purpose, the Sole Arbitrator shall be selected by the
OWNER out of the said panel."
5. Learned counsel for the petitioner submits that by the notice
inviting arbitration, the petitioner requested the respondents to suggest
a panel of three persons so that the petitioner could select one of the
three as the arbitrator. It is contended that on the failure of the
respondents to even suggest the panel of three persons, the present
petition was filed.
6. Learned counsel for the respondents submits that the
respondents have no objection to an independent arbitrator being
appointed by the Court to adjudicate the disputes between the parties.
7. With the concurrence of the parties, Mr. Justice A.R. Dave
(Retired), Former Judge of the Supreme Court of India, is appointed
as the sole 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.
8. The Arbitrator Tribunal shall adjudicate the claims of the
petitioner and the counter claims, if any of the respondents.
9. The Arbitrator shall fix his fee in consultation with learned
counsel for the parties.
10. The parties are at liberty to approach the learned Arbitrator for
elucidating the necessary disclosures and for further proceedings.
11. The petition is accordingly disposed of.
12. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
JULY 24, 2017
st
