Delhi High Court
M/S Era Infra Engineering Ltd vs Delhi State Industrial And ... on 10 December, 2021
$~21(2021)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10.12.2021
+ O.M.P. (T) (COMM.) 128/2021
M/S ERA INFRA ENGINEERING LTD. ..... Petitioner
Through: Mr. Udit Seth, Advocate
Versus
DELHI STATE INDUSTRIAL AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LTD ..... Respondent
Through: Mr. Sarthak Chillar, Advocate
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. The above captioned petitions have been filed under the provisions of
Section 14 and 15 of the Arbitration and Conciliation Act, 1996 seeking
appointment of a substituted Arbitrator.
2. Petitioner claims to be engaged in the business of infrastructure
development and construction, who had submitted its offer to a tender
published by respondent -DSIIDC for construction of 1272 Dwelling unit
with external Development & Electrification of project, which was issued by
the petitioner vide letter of Acceptance dated 23.01 .2008. Pursuant thereto,
a Contract was executed between the parties on 28.02 .2008. Thereafter
certain disputes arose between the parties and respondent invoked arbitration
vide letter dated 09.06. 2017. Further, respondent vide its letter dated
11.07.2017 appointed the Sole Arbitrator to adjudicate the disputes, who
entered into reference vide letter dated 14.07 .2017 and fixed the preliminary
date of hearing on 28.08.2017. However, petitioner came to know in 2018
that the Arbitrator so appointed was on the panel of respondent- DSIIDC.
Petitioner has cited various reasons for not being able to pursue the case
thereafter.
3. Learned counsel appearing on behalf of respondent has opposed the
present petition while submitting that in terms of arbitration Clause -25 (ii)
of the Contract Agreement, appointment of Arbitrator has to be done from
the panel of Arbitrators of DSIIDC, which is vehemently opposed by
learned counsel for petitioner.
4. On the asking of this Court as to how many Arbitrators are available
on the panel of respondent, learned counsel for respondent has produced
before this Court a List of Arbitrators on the panel of DSIIDC which are
eleven in number.
5. It is the case of petitioner that the learned Arbitrator so appointed in
this case has also been appointed in six other cases besides the present one
and has therefore, approached this Court for appointment of sole Arbtitrator
for a just and fair redressal of the disputes.
6. The Hon'ble Supreme Court in Perkins Eastman Architects DPC
&Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 has categorically
stated that "in cases where one party has a right to appoint a sole
arbitrator, its choice will always have an element of exclusivity in
determining or charting the course for dispute resolution. Naturally, the
person who has an interest in the outcome or decision of the dispute must
not have the power to appoint a sole arbitrator."
7. The afore-noted dictum of Hon'ble Supreme Court in Perkins
Eastman (Supra), has been followed by Coordinate Benches of this Court in
Proddatur Cable Tv Digi Services Vs. Siti Cable Network Limited2020
SCC OnLine Del 350 and VSK Technologies Private Limited and Others
Vs. Delhi Jal Board 2021 SCC OnLine Del 3525 in unequivocal terms.
8. In view of the above, the present petition is allowed. Accordingly,
Ms. Justice (Retd.) Pratibha Rani (Mobile: 9910384626) is appointed the
sole Arbitrator to adjudicate the dispute between the parties.
9. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
10. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
11. The present petition and pending application, if any, are accordingly
disposed of.
(SURESH KUMAR KAIT)
JUDGE
DECEMBER 10, 2021
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