Omaxe Infrastructure & ... vs Union Of India & Ors.
2017 Latest Caselaw 5942 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI\

+    O.M.P.(MISC)(COMM) 40/2017

                                 Date of decision: 27th October, 2017

     OMAXE INFRASTRUCTURE &
     CONSTRUCTION LTD.                             ..... Decree Holder


                          Through     Ms. Tina Garg and M.K.
                                      Ghosh, Advs
                    versus
     UNION OF INDIA & ORS.                  ..... Judgment Debtor
                    Through           Mr. Anurag Ahluwalia, CGSC
                                      with Mr Sushil Kumar Pandey,
                                      GP along with Mr. Akhilesh
                                      Gupta, Director

     CORAM:
     HON'BLE MR. JUSTICE NAVIN CHAWLA

      NAVIN CHAWLA, J. (Oral)

IA No.12413-14/2017(exemptions)

Allowed, subject to all just exceptions.

The applications are disposed of.

O.M.P.(MISC.)(COMM.) 40/2017

1. This is an application under section 29-A(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to

OMP(MISC)(COMM) 40/2017 Page 1 as 'the Act') praying for appointment of an independent arbitrator for adjudicating the disputes arising between the parties out of Contract Agreement no. DG-MAP/PHASE-II- Nagrita/PKG/IA/2010/11 (hereinafter refer to as 'the Agreement') for construction of residential accommodation at Nagrata. It has been submitted by the learned counsel for the petitioner that Shri Sudesh Kumar Gupta has been appointed by the Engineer In-Chief as sole arbitrator to adjudicate the disputes between the parties. He had entered reference on 27 th February, 2016. The pleadings were completed by the parties and the sole arbitrator vide letter dated 22nd February, 2017 fixed 6th March, 2017 as the date of hearing. However, on the said date, respondent failed to appear before the sole arbitrator as a result of which the proceedings were adjourned to 12th April, 2017. As the time period mentioned in Section 29-A(1) had expired on 12th April, 2017, the parties agreed to a further extension of six months for the completion of proceedings before the sole arbitrator. The parties have also filed their arguments in support of their contentions before the sole arbitrator, however, since 15th June, 2017 there was no communication from the sole arbitrator regarding further progress of the arbitration proceedings. The petitioner has therefore filed the present petition seeking extension of time for completion of the arbitration proceedings and for appointment of an independent arbitrator in place of Shri Sudesh Kumar Gupta.

OMP(MISC)(COMM) 40/2017 Page 2

2. The learned counsel for the respondent, appearing on advance notice, has brought to my notice communication dated 5th October, 2017 from the learned sole arbitrator tendering his resignation and expressing inability to continue as arbitrator. The learned counsel for the respondent further produced a letter dated 24th October, 2017 whereby the Engineer In-Chief has been requested to appoint a substitute arbitrator in place of Shri Sudesh Kumar Gupta.

3. In view of the above, the counsel for the respondent submits that the petition has become infructuous inasmuch as the prayer for appointment of an independent arbitrator is concerned. On the other hand, the counsel for the petitioner submits that the progress of the arbitration before Shri Sudesh Kumar Gupta would show that unless an independent arbitrator is appointed, the proceedings would not proceed in a fair manner.

4. I have considered the submissions made by the Counsels for the parties. Clause 60 of the Agreement provides that the disputes between the parties shall be referred to the sole arbitrator to be appointed by the Engineer In-Chief, Army Head Quarters, New Delhi or in his absence, the Official Officiating as Engineer In-Chief or Director General of Works, if specifically delegated in writing by Engineer In- Chief, Army Head Quarters, New Delhi. It is further provided that if the arbitrator so appointed resigns or vacates his office or is unable

OMP(MISC)(COMM) 40/2017 Page 3 or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new arbitrator to act in his place.

5. In view of the above clause, I see no reason to deny the power of appointment vested with the Engineer In-Chief. The apprehension of the petitioner can be guarded through recourse to section 12 of the Arbitration Act, if at all required. It would not be proper for me, at this stage, to presume that the new arbitrator so appointed would not act in an impartial manner or with promptness.

6. In view of the above, while extending the time period for making of an award for a further period of six months from today, I direct the Engineer In-Chief, Army Head Quarters, New Delhi to appoint the substitute arbitrator within a period of two weeks from today. The substitute arbitrator who shall now to be appointed shall proceed from the stage where the arbitration proceedings were before the earlier appointed arbitrator.

7. This petition is disposed of in the above terms.

Copy of this order be given dasti under signature of Court Master.

                                             NAVIN CHAWLA, J
OCTOBER 27, 2017
nk




OMP(MISC)(COMM) 40/2017                                           Page 4