Delhi High Court
Sh. Shashi Kant Prop. Of Mani ... vs Era Infra Engineering Limited ... on 26 September, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.09.2017
+ ARB.P. 492/2017
SH. SHASHI KANT PROP. OF MANI BUILDER .... Petitioner
versus
ERA INFRA ENGINEERING LIMITED THROUGH ITS
MANAGING DIRECTOR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms Prerna Sinha and Mr Hasib-ur-Rehman
For the Respondent : Mr Manoj Singh, Mr Palash Taing and
Mr Rahul Pandey
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
26.09.2017
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 a Sole Arbitrator.
2. The petitioner was awarded a Contract for a project at the work
site of TF005, Haridwar Highway Project (SH: drain work). Work
orders were issued to the petitioner.
3. As per the petitioner, during execution of the work, disputes
arose, inter alia, with regard to the payment for the works executed,
leading to the petitioner invoking the arbitration clause.
4. The Arbitration Clause, as contained in the Work Order and
agreed to between the parties reads as under:-
"This work order and all questions of its interpretation
shall be governed in all respects solely and exclusively by
the laws of India without regard to conflict of laws
principles. The courts of Delhi shall have jurisdiction in
respect of all matters relating thereto. Each of the parties
consents to the exclusive jurisdiction of such courts.
A Dispute shall be deemed to arise when one party serves
on the other party notice stating the nature of the dispute
(a „Notice of Dispute‟) which arises here to agree that
they will use all reasonable efforts to resolve between
themselves, any Disputes through negotiations. Any
Dispute and differences whatsoever arising under or in
connection with this work order (including the
enforcement of the rights, duties, powers and obligations
conferred herein) which cannot be settled by Parties
through negotiations, after the period of thirty (30)
business days from the service of the Notice of Dispute,
shall be finally referred to the Managing Director of the
company, who will appoint a Sole Arbitrator. All such
arbitration proceeding shall be held in accordance with
the Arbitration and Conciliation Act, 1996."
5. Learned counsel for the petitioner submits that though the
arbitration clause stipulates that the Sole Arbitrator shall be the
Managing Director of the respondent - Company, however, in view of
the judgment of the Supreme Court in TRF LIMITED VERSUS ENERGO
ENGINEERING PROJECTS LIMITED, (2017) 8 SCC 377, the Managing
Director is disqualified under Section 12 of the Act, as amended by
the Arbitration & Conciliation (Amendment) Act, 2015, to act as the
Arbitrator. She prays that a Sole Arbitrator be appointed by court.
6. Learned counsel for the respondent submits that without
prejudice to the rights and contentions of the respondent and the
defence to the claims raised by the petitioner, he has no objection if a
Sole Arbitrator could be appointed.
7. Accordingly, with the consent of parties, Ms Bimla Makin,
former District Judge (Mobile # 9910384624) is appointed as the
Sole Arbitrator, subject to the Arbitrator making necessary disclosures
under Section 12 of the Act, of not being ineligible under Section
12(5) of the Act.
8. The Arbitrator shall adjudicate the claims of the petitioner and
the counter-claims, if any, of the respondent.
9. The fee of the Arbitrator shall be in accordance with Schedule 4
of the Act.
10. The parties are at liberty to approach the 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
SEPTEMBER 26, 2017/'Sn'
