Delhi High Court
M/S Pnsc Infrastructure Pvt Ltd vs Jamia Millia Islamia on 22 July, 2024
Author: C.Hari Shankar
Bench: C. Hari Shankar
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 482/2024
M/S PNSC INFRASTRUCTURE PVT LTD .....Petitioner
Through: Mr. Kunwar Chandresh, Ms.
Poonam Prasad, Ms. Anshuka Nigam and
Mr. Munis Nazir, Advs.
versus
JAMIA MILLIA ISLAMIA .....Respondent
Through: Mr. Pritish Sabharwal, SC for
JMI
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 22.07.2024
1. Mr. Pritish Sabharwal, learned Standing Counsel for the
respondent, submits that he has filed a reply to this petition, which is
not forthcoming on record.
2. Nonetheless, Mr. Sabharwal has been heard. He submits that
his main opposition to this petition is on the ground of limitation as
well as on the ground that the entire amount due to the petitioner
already stands paid.
3. In view of the recent judgment of the Supreme Court in SBI
General Insurance Company Ltd v. Krish Spinning1 these pleas have
necessarily to be taken before the learned Arbitral Tribunal.
1 2024 SCC OnLine SC 1754
Digitally Signed ARB. P. 482/2024 Page 1 of 4 Digitally Signed
By:ROHIT BARARIA By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:24.07.2024 Signing Date:24.07.2024
16:42:06 16:41:15
4. The relevant portion of the arbitration clause which governs the
parties reads thus:
"Clause 25
Except where otherwise provided in the contract, all questions and
disputes relating the meaning of the specifications, design,
drawings and instructions herein before mentioned and as to the
quality of workmanship or materials used on the work or as to any
other question, claim right, matter or thing whatsoever in anyway
arising out of or relating to the contract, designs, drawings,
specifications, estimates, instructions orders or these conditions or
otherwise concerning the works or the execution or failure to
execute the same whether arising during the progress of the work
or after the cancellation, termination, completion or abandonment
thereof shall referred to the sole arbitration of the person appointed
by the V.C., Jamia Millia Islamia in office, at the time of dispute or
there be no V.C. the administrative head of the Jamia Millia
Islamia, at the time of such appointment that the arbitrator so
appointed.
It will be no objection to any such appointment that the arbitrator
so appointed is a University servant, that he had to deal with the
matters to which the contract relates and that in the course of his
duties as University servant he had expressed views on all or any
of the matters in dispute of difference. The arbitrator to whom the
matter is originally referred being transferred or vacating his office
or being unable to act for any reason, such head as aforesaid at the
time of such transfer, vacation of office or inability to act, shall
appoint another person to act as arbitrator in accordance with the
terms of the contract. Such person shall be entitled to proceed with
the reference from the stage at which it was left by his predecessor.
It is a term of the contract that the party invoking arbitration shall
specify the dispute or disputes to be referred to arbitration under
this clause together with the amount or amounts claimed in respect
of each such dispute on prescribed proforma as per Appendix XV.
It is also a term of this contract that no person, other than a person
appointed by Vice-Chancellor or Administrative Vice-Chancellor
as aforesaid, should act as arbitrator and if for any reason that it is
not possible, the matters shall not be referred to arbitration at all.
It is also a term of the contract that if the contractor does not make
any demand for appointment of arbitrator in respect of any claims
in writing as aforesaid within 120 days of receiving the intimation
from the Jamia Millia Islamia that the final bill is ready for
payment the claim of the contractor will be deemed to have been
Digitally Signed ARB. P. 482/2024 Page 2 of 4 Digitally Signed
By:ROHIT BARARIA By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:24.07.2024 Signing Date:24.07.2024
16:42:06 16:41:15
waived and absolutely barred and the Jamia Millia Islamia shall be
discharged and released of all liabilities under the contract in
respect of these claims.
The arbitration shall be conducted in accordance with the
provisions of the arbitrator and Conciliation Act, 1996 (26 of 1996)
or any statutory modifications or enactment thereof and the rules
made there under and for the time being in force shall apply to the
arbitration proceeding under this clause.
It is also a term of this contract that the arbitrator shall adjudicate
on only such disputes as are referred to him by the appointing
authority and give separate award against each dispute and claim
referred to him and in all cases where the total amount of the
claims by any part exceeds Rs.1,00,000/- the arbitrator shall give
reasons for the award.
It is also a terms of the contract that if any fees are payable to the
arbitrator these shall be paid equally by both the parties.
It is also a terms of the contract that the arbitrator shall be deemed
to have entered on the reference on the date he issues notice to both
the parties calling them to submit their statement of claims and
counter statement of claims. The venue of the arbitration shall be
such place as may be fixed by the arbitrator in his sole discretion.
The fees, if any, of the arbitrator shall, if required to be paid before
the award is made and published, be paid and paid half by each of
the parities. The cost of the reference and of the award (including
the fees, if any of the arbitrator) shall be in the discretion of the
arbitrator who may direct to any by whom and in what manner,
such costs or any part thereof shall be paid and fix or settle the
amount of costs to be so paid.
The arbitrator(s) may from time to time with consent of the parties
enlarge the time, for making and publishing the award.
The decision of the University Superintending Engineer regarding
quantities of reduction as well as justification there of in respect of
rates for sub standard work which may be decided will be final and
would not be open to arbitration."
5. In view of the judgment of the Supreme Court in Perkins
Eastman Architects DPC v. HSCC (India) Ltd)2 and Bharat
2 (2020) 20 SCC 760
Digitally Signed ARB. P. 482/2024 Page 3 of 4 Digitally Signed
By:ROHIT BARARIA By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:24.07.2024 Signing Date:24.07.2024
16:42:06 16:41:15
Broadband Network Ltd v. United Telecoms Ltd3, the arbitration can
obviously not be assigned to the Vice Chancellor of the respondent.
6. Both sides are, therefore, agreeable to appointment of an
independent person as an arbitrator, as fixed by the Court.
7. However, Mr. Sabharwal submits that all contentions including
the contentions of limitation and accord and satisfaction may be left
open to be taken before the learned arbitrator.
8. Accordingly, this Court appoints Ms. Madhurima Mridul,
Advocate (Tel: 9810175151) as arbitrator to arbitrate on the dispute
between the parties.
9. The arbitrator shall be entitled to charge fees in accordance with
the Fourth Schedule of the 1996 Act. The learned Arbitrator is also
requested to file the requisite disclosure under Section 12(2) of the
1996 Act within a week of entering on the reference.
10. The respondent shall also be entitled to file any counter claim, if
it so chooses, with the learned Arbitral Tribunal.
11. This petition stands disposed of in the aforesaid terms.
C.HARI SHANKAR, J
JULY 22, 2024
dsn
Click here to check corrigendum, if any
3 (2019) 5 SCC 755
Digitally Signed ARB. P. 482/2024 Page 4 of 4 Digitally Signed
By:ROHIT BARARIA By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:24.07.2024 Signing Date:24.07.2024
16:42:06 16:41:15
