Afcons Sener Lng Construction ... vs Western Concessions Pvt. Ltd.
2021 Latest Caselaw 2418 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of decision: 06.09.2021
+     O.M.P. (T) (COMM.) 35/2021
      AFCONS SENER LNG CONSTRUCTION PROJECTS PRIVATE
      LIMITED                     .            .....Petitioner
                   Through: Mr. Rajiv Nayar, Senior Advocate
                            with associate counsel

                         Versus

      WESTERN CONCESSIONS PVT. LTD.      ......Respondent
                  Through: Mr. Sanjeev Puri, Senior Advocate
                           with associate counsel

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (oral)

1. The present petition has been preferred by the petitioner seeking

appointment of a substituted Arbitrator under the provisions of Section 15(2)

r/w Sections 14 and 11(6) of the Arbitration and Conciliation Act, 1996.

2. For adjudicating disputes between the parties under the Engineering

Procurement and Construction Contract for the LNG Regasification

Terminal - No. HGPL-EPC-00001 dated 12.03.2015, an Arbitral Tribunal

consisting of Mr. Justice B.P. Singh (Retd.), Late Mr. Justice Surinder Singh

Nijjar (Retd.), and Mr. Justice Mukul Mudgal (Retd.) was constituted on 23

October 2018. Pertinently, appointment of late Mr. Justice Nijjar was

appointed by this Court in ARB.P. 339 of 2018 on account of failure on the

part of respondent to nominate an Arbitrator in terms of Clause 38 of the

aforesaid contract. However, after conclusion of the final hearing, Mr.

Justice Surinder Singh Nijjar (Retd.) passed away on 26.03.2021.

3. Learned counsel for petitioner submits that after demise of Mr. Justice

Surinder Singh Nijjar (Retd.), another Arbitrator has to be appointed in this

case.

4. At the hearing, learned counsel for petitioner has submitted that after

demise of Mr. Justice Surinder Singh Nijjar (Retd.), respondent vide its e-

mail dated 28.03.2021 sought appointment of Mr. Justice M.L.Varma

(Retd.) as substitute Arbitrator, whereas respondent's right to nominate /

appoint Arbitrator stood forfeited after appointment of Mr. Justice Surinder

Singh Nijjar (Retd.) in ARB.P. 339 of 2018 by this Court.

5. The present petition has been vehemently opposed by learned senior

counsel appearing on behalf of the respondent while submitting that

appointment of Mr. Justice M.L. Varma (Retd.) as substitute Arbitrator has

to be made in terms of Clause-38.6.6 of the Contract.

6. Today, during the course of hearing, learned senior counsel appearing

on behalf of both the sides have arrived at a consensus that instead of

unilateral nomination, this Court may appoint a substituted Arbitrator in the

present case.

7. Accordingly, Mr. Justice (Retd.) Rajiv Sahai Endlaw (Mobile:

9717495002) is appointed substituted Arbitrator in the present case.

8. The fee of the learned Arbitrator shall be governed by the Fourth

Schedule of the Arbitration and Conciliation Act, 1996.

9. The learned Arbitrator shall ensure compliance of Section 12 of

Arbitration and Conciliation Act, 1996 before commencing the arbitration.

10. With aforesaid directions, the present petition is accordingly disposed

of.

(SURESH KUMAR KAIT) JUDGE SEPTEMBER 06, 2021 r