Delhi High Court
Punjab Marketing vs Zeva Engineering & Management ... on 26 July, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.07.2017
+ ARB.P. 261/2017
PUNJAB MARKETING ..... Petitioner
versus
ZEVA ENGINEERING & MANAGEMENT
SERVICES PRIVATE LIMTIED & OTHERS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Yeeshu Jain and Ms Jyoti Tyagi
For the Respondents : Mr Atul Krishna and Mr Rajiv Narain
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
26.07.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner by this petition, under Section 11 of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the
Act'), seeks appointment of an Arbitrator.
2. The petitioner was awarded the Contract for erection of kiosks
at different sites.
3. Disputes have arisen between the parties.
4. The petitioner has invoked the arbitration clause, which reads as
under:-
"45. All disputes and differences of any kind whatsoever
arising out of or in connection with this Contract
whether during the progress of the work or after their
completion shall be referred in writing by the Contractor
to the Owner's representative and the owner shall within
15 days from receipt make and notify its decisions
thereon in writing to the Contractor.
Decisions, directions, clarifications,
measurements, drawings and certificates with respect to
any matter, the decision for which is specially provided
for by these or other special conditions to be given and
made by the Owner's Representative or by the Project
Manager are matters which are referred to hereinafter as
exempted matters and shall be final and binding upon the
Contractor and shall not be set aside on account of non-
observance of any formality, any omission, delay or error
in proceeding in or about the same or on any other
ground or for any reason and shall be without appeal.
They shall be specifically excluded from the scope of
arbitration proceedings hereinafter referred to.
Subject to the aforesaid, in the event of any
dispute or difference between the parties hereto as to the
construction or operation of this Contract, or the
respective rights and liabilities of the parties on any
matter in question, dispute or difference on any account
or as to the withholding by the Owner of any certificate
to which the Contractor may claim to be and entitled to
or if the Owner fails to make a decision within the
aforesaid time, then and in any such case, but except in
any of the exempted matters referred to in the above
clause, the Contractor after 90 days of his presenting his
final claim on the disputed matters, may demand in
writing. that the dispute or difference be referred to and
settled by two arbitrators, one to be nominated by the
Owner and the other by the Contractor. The award of
the Arbitrators, or the Umpire who shall be appointed by
the two arbitrators if there is any disagreement between
the two Arbitrators before entering on the reference,
shall be final and binding on both the parties. The
provision as per the Arbitration and Conciliation Act
1996 shall apply to such arbitration. The arbitration
venue shall be at New Delhi. The procedure for the
arbitration shall be determined by the arbitrators. Costs
of such arbitration shall be equally shared between the
Owner and the Contractor.
The Contractor shall not, except with the consent
in writing of the Owner in any way delay the carrying out
of the work by reason of such matter, question or dispute
being referred to arbitration but shall proceed with the
work with all due diligence and shall, until the decision
of the arbitrator is given, abide by the decision of the
Owner/PMC and no award of the arbitrator shall relieve
the Contractor of his obligations to adhere strictly to the
Owner, the Owner's Representative's or the Project
Manager's instructions with regard to the actual carrying
out of the Work except as specifically affected by such
award."
5. The petitioner invoked arbitration by letter dated 30.01.2017.
6. Despite the petitioner having invoked arbitration, the
respondent has not appointed Arbitrator.
7. Learned counsel for the respondent submits that without
prejudice to his defence, he has no objection to the appointment of an
independent Arbitrator.
8. Learned counsels for the parties submit that in view of the
quantum of dispute, a Sole Arbitrator be appointed instead of a three
Member Tribunal.
9. Accordingly with the consent of parties, Mr Dalip Mehra,
Advocate (Mobile # 9811084919) is appointed as the Sole Arbitrator
to adjudicate the dispute between the parties. This is subject to the
Arbitrator making the necessary disclosure under Section 12 of the
Act not being ineligible under Section 12(5) of the Act.
10. The Arbitral Tribunal shall examine the claims of the petitioner
and the counter claims, if any of the respondents.
11. The Arbitrator shall fix his fee in consultation with learned
counsel for 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.
14. Order Dasti under signatures of the Court Master.
JULY 26, 2017/'Sn' SANJEEV SACHDEVA, J
