Delhi High Court
H S Oberoi Buildtech Pvt. Ltd vs Mahamaya Infrastructure Pvt. ... on 13 September, 2021
$~2 (Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 543/2021, I.A. 6866/2021
H S OBEROI BUILDTECH PVT. LTD ..... Petitioner
Through: Mr. Ashok Chhabra, Advocate
with Mr. Pawan Kumar Mittal,
Advocate.
versus
MAHAMAYA INFRASTRUCTURE PVT. LTD... Respondent
Through: Mr. Adab Singh Kapoor and
Mr. Sameer Choudhary,
Advocates.
CORAM:
HON'BLE MR. JUSTICE C .HARI SHANKAR
O R D E R (ORAL)
% 13.09.2021
(Video-Conferencing)
1. This is a petition under Section 11 of the Arbitration and
Conciliation Act, 1996 ("the 1996 Act") for reference of the disputes
between the parties to arbitration.
2. The only objection, raised by Mr. Kapoor, learned Counsel for
the respondent, is tethered on Clause 52.2.2 of the General and Special
Conditions of Contract ("GSCC", in short). Clauses 52.2.1 and 52.2.2
of the GSCC may, for this purpose, be reproduced thus;
"52.2 Arbitration
52.2.1 Any dispute arising out of a Notified Claim of the
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Contractor include[sic] in the Final Bill of the Contractor
in accordance with the provisions of Clause 52.1.2 hereof,
and any dispute arising out of any Claim(s) of the Owner
against the Contractor shall be referred to the arbitration of
a Sole Arbitrator selected in accordance with the
provisions of Clause 52.2.2 hereof. It is specifically agreed
that the Owner may prefer its Claim(s) against the
Contractor as counter-claim(s) if a Notified Claim of the
Contractor has been referred to arbitration. The Contractor
shall not, however, be entitled to raise as a set-off defense
or counter-claim any claim which is not a Notified Claim
included in the Contractor's Final Bill in accordance with
the provisions of Clause 52.1.1 hereof.
52.2.2 The Sole Arbitrator referred to in Clause 52.2.1
hereof shall be selected by the Contractor out of a panel of
3 (three) persons nominated by the Owner for the purpose
of such selection, and should the Contractor fail to select
an arbitrator within 30 (thirty) days of the panel of names
of such nominees being furnished by the Owner for the
purpose, the Sole Arbitrator shall be selected by the Owner
out of the said panel."
Admittedly, there was a default, on the part of the petitioner, in
selecting a contractor out of the panel of three persons nominated by
the respondent. This would bring into operation the second part of
Clause 52.2.2 which envisages selection of the arbitrator by the
Owner. This part of the Clause is, however, inoperable in view of the
law laid down by the Supreme Court in Bharat Broadband Network
Ltd. vs. United Telecoms Ltd 1 and Perkins Eastman Architects DPC
& Anr. vs. HSCC (India) Limited 2 as well as of this Court in
Proddatur Cable TV Digi Services vs. SITI Cable Network Limited 3
(2019) 5 SCC 755
(2020) 20 SCC 760
(2020) 267 DLT 51
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3. Mr. Kapoor's submission is that, though he has no objection to
an arbitrator being appointed by this Court, in view of the default on
the part of the petitioner in selecting an arbitrator out of the panel of
three arbitrators provided by the respondent, compliance with the
protocol contemplated by Clause 52.2.2 would require this court to
appoint an Arbitrator from the said panel.
4. The submission is merely required to be stated to be rejected.
The power of this Court to appoint an arbitrator, under Section 11(6),
cannot be hedged in by any panel of arbitrators suggested by one party
or the other. Once Section 11(6) of the Arbitration Act applies, it is for
the Court to appoint an Arbitrator, as per its best judgment. There is
no question of requiring this Court to appoint the Arbitrator out of the
panel of arbitrators suggested by the respondent.
5. The opening part of Clause 52.2.2 applies only to provide a
choice of arbitrators to the petitioner. It does not provide a choice of
arbitrators to the Court. Once the petitioner has not chosen an
arbitrator out of the said panel, and the second part of Clause 52.2.2
cannot be worked on account of the law laid down in the aforesaid
decisions, this Court has to appoint the arbitrator independently of
Clause 52.2.2.
6. The submission of Mr. Kapoor, learned Counsel, that the Court
should appoint arbitrator out of the panel of arbitrators suggested by
the respondent is, therefore, unequivocally rejected.
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7. No other objection to the reference of the dispute to arbitration
having been advanced by Mr. Kapoor, this Court appoints Mr. Gautam
Narayan, Advocate (Cell No.: 9811411735 & E-mail ID:
[email protected]), as the sole arbitrator to arbitrate on the
aforesaid disputes between the parties
8. The learned Arbitrator would be entitled to charge fees in
accordance with the Fourth Schedule to the 1996 Act or as otherwise
agreed in consultation with the parties. The learned Arbitrator is also
requested to furnish the requisite disclosure under Section 12(2) of the
1996 Act within a week of entering on reference.
9. This petition stands allowed in the aforesaid terms with no order
as to costs.
C. HARI SHANKAR, J
SEPTEMBER 13, 2021
hd
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Signing Date:16.09.2021
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