Delhi High Court
Gencon Engineering And ... vs Cinda Engineering And ... on 21 September, 2020
$~2(original side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 393/2020 & I.A. 8325/2020
GENCON ENGINEERING AND CONSTRUCTION PVT Ltd.
..... Petitioner
Through: Mr. Vikram Singh Baid, Adv.
versus
CINDA ENGINEERING AND CONSTRUCTION PVT LTD
..... Respondent
Through: Mr. Neil Hildreth and Mr.
Rahul Jain, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 21.09.2020
(Video-Conferencing)
I.A. 8325/2020 in ARB.P. 393/2020
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
ARB.P. 393/2020
1. This is a petition under Section 11 (6) of the the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act"),
seeking intervention of this Court to appoint a sole arbitrator to
arbitrate on the disputes between the parties.
Signature Not Verified
Digitally Signed By:SUNIL
SINGH NEGI
Signing Date:23.09.2020
21:13:24
2. Issue notice.
3. Notice is accepted by Mr. Neil Hildreth, learned counsel, on
behalf of the respondent.
4. Both learned counsel have been heard and, with consent of
learned counsel, the matter is being disposed of at this stage itself.
5. The disputes arise out of a contract dated 9th January, 2017,
awarded by the respondent to the petitioner, for a total contractual
value of ₹ 4,81,28,715/-.
6. The contract was for "U/G CS piping fabrication and
installation of civil & structure works".
7. The petitioner alleges default, on the part of the respondent, in
providing pipes, for the petitioner to complete the work stipulated
under the contract.
8. Various other allegations have also been levelled, by the
petitioner against the respondent, including frequent changing of
scope of work and other delays. As a result, it is alleged in the
petition that the cost of the work increased from ₹ 4,81,28,715/- to ₹
5,84,61,522.77.
9. It is also alleged, by the petitioner, that bills of the petitioner
were not cleared by the respondent till time.
Signature Not Verified
Digitally Signed By:SUNIL
SINGH NEGI
Signing Date:23.09.2020
21:13:24
10. Needless to say, the respondent disputes these allegations and,
vide letter dated 20th July, 2020, levelled counter allegations, of
default on the part of the petitioner, as also of amounts being payable
by the petitioner to the respondent as a consequence thereof.
11. It appears that the claims of the parties, against each other, are
in the region of approximately ₹ 1.7 crores, each way.
12. Arbitrable disputes have, therefore, clearly arisen between the
parties.
13. Clause 15.1, in the agreement between the parties, provides for
arbitration as a means to resolve differences and disputes between
them, and reads as under:
"15.1 If any dispute or difference of any kind whatsoever
shall arise between the company and the contractor in
connection with, or arising out of the contract, or the
execution of the contract works, whether during the progress
of the contract works or after their completion and before or
after the termination, abandonment or breach of the
subcontract, it shall be referred to arbitration as hereinafter
provided.
All disputes or differences shall be referred to a tribunal
comprising three (3) arbitrators under the (Indian) Arbitration
and Conciliation Act, 1966, Each party to the arbitration shall
appoint one (1) arbitrator and the two (2) arbitrators thus
appointed shall choose the third arbitrator who will act as
presiding arbitrator of the tribunal (together forming the
"Arbitral Tribunal"). The decision(s) of the Arbitral Tribunal
shall be final and binding on the Parties. The venue of
arbitration shall be New Delhi. The governing law of the
arbitration shall be the substantive law of India."
Signature Not Verified
Digitally Signed By:SUNIL
SINGH NEGI
Signing Date:23.09.2020
21:13:24
14. Learned counsel are ad idem that, though the afore-extracted
arbitration clause contemplates an Arbitral Tribunal of three
arbitrators, they are agreeable to the disputes being decided by a sole
arbitrator.
15. For this purpose, communications were exchanged between the
petitioner and the respondent, suggesting names of person to be
appointed as sole arbitrator. However, there is no consensus between
them, resulting in the filing of the present petition seeking intervention
of this Court in the matter.
16. As there is no consensus between the parties regarding the
identity of the sole arbitrator to arbitrate on the disputes between them,
Section 11 (6) of the 1996 Act requires this Court to appoint a sole
arbitrator.
17. Accordingly, this Court appoints Hon'ble Mr Justice A. K.
Pathak (retd), a retired Judge of this Court, (Address: AB-84 ,
Shahjahan Road,New Delhi-110003, Mobile No. 9910384602), as the
sole arbitrator to arbitrate on the disputes between the parties.
18. The parties would contact the learned sole arbitrator at the
details provided hereinabove, within a period of one week from today.
19. The fees payable to the learned sole arbitrator would be in
accordance with Schedule IV of the 1996 Act.
Signature Not Verified
Digitally Signed By:SUNIL
SINGH NEGI
Signing Date:23.09.2020
21:13:24
20. Within a week of entering on the reference, the learned sole
arbitrator would furnish the requisite disclosure, under Section 12 of
the 1996 Act.
21. This petition stands disposed of in the aforesaid terms.
C. HARI SHANKAR, J.
SEPTEMBER 21, 2020
dsn
Signature Not Verified
Digitally Signed By:SUNIL
SINGH NEGI
Signing Date:23.09.2020
21:13:24
