Gauhati High Court
Business At 11Th Floor vs The Union Of India And 5 Ors on 4 June, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/6
GAHC010073462023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1908/2023
ECI- SANJOSE (JV)
A JOINT VENTURE BETWEEN ECI ENGINEERING AND CONSTRUCTION
COMPANY LIMITED, HAVING ITS REGISTERED OFFICE AT PLOT NO. A12
AND A13, PANCHAVATI TOWNSHIP, MANIKONDA, RAJENDRA NAGAR
MANDAL, DIST-RANGA REDDY, HYDERABAD-500089, TELANGANA AND
M/S CONSTRUCTOR A SANJOSE, S.A. HAVING ITS REGISTERED OFFICE AT
ROSALIA DE CASTRO, 44, PONTEVEDRA, SPAIN AND ITS INDIAN OFFICE
AT UNIT 602, GLOBAL FOYER BUILDING, GOLF COURSE ROAD, SECTOR-
43, GURGAON-122002, HARYANA AND HAVING ITS PRINCIPAL PLACE OF
BUSINESS AT 11TH FLOOR, HIRANANDANI, KNOWLEDGE PARK,
TECHNOLOGY STREET, POWAI, MUMBAI-76 AND IS REPRESENTED
THROUGH ITS AUTHORISED REPRESENTATIVE MR. P.M.V. RAGHUNADH
BABU, S/O P. KOTESWARA RAO, R/O FLAT NO. 111, JALVAYUVIHAR,
OPPOSITE JNTU KUKTPALLY, HYDERABAD, 500072, TELENGANA
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF RAILWAYS, NEW DELHI-110001
2:NORTHEAST FRONTIER RAILWAY
REPRESENTED BY ITS GENERAL MANAGER
NF RAILWAY H.Q.
MALIGAON
GUWAHATI-781011
3:GENERAL MANAGER (CONSTRUCTION)
NORTHEAST FRONTIER RAILWAY
NF RAILWAY HQ
MALIGAON
GUWAHATI-781011
Page No.# 2/6
4:PRESIDING ARBITRATOR SHRI A.K. MITTAL
EX. ME
RAILWAY BOARD AND FLAT C-2/10 (3102)
VANSHREE PLOT 1 AND 2 SECTOR 58A PALM BEACH ROAD
NEAR SEAWOODS ESTATE
NERUL
NAVI MUMBAI-400706
MAHARASHTRA
5:CO-ARBITRATOR SHRI AKHIL AGARWAL
EX-DG/S AND T/RAILWAY BOARD
K-122
GULSHAN VIVANTE
SECTOR-137
NOIDA-201304
U.P
6:CO-ARBITRATOR SHRI HARSH KUMAR
EX-FA AND CAO/NORTHERN RAILWAY
HOUSE NO. G-1001
NBCC HEIGHTS
SECTOR-89
PATAUDI ROAD
GURUGRAM-122505
HARYAN
Advocate for the Petitioner : MR G N SAHEWALLA
Advocate for the Respondent : DY.S.G.I.
Linked Case : I.A.(Civil)/478/2024
NORTHEAST FRONTIER RAILWAY
REPRESENTED BY ITS GENERAL MANAGER
NF RAILWAY H.Q.
MALIGAON
GUWAHATI-781011
2: GENERAL MANAGER (CONSTRUCTION)
NORTHEAST FRONTIER RAILWAY
NF RAILWAY HQ
MALIGAON
Page No.# 3/6
GUWAHATI-781011
VERSUS
ECI- SANJOSE (JV)
A JOINT VENTURE BETWEEN ECI ENGINEERING AND CONSTRUCTION
COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AT PLOT NO. A12 AND A13
PANCHAVATI TOWNSHIP
MANIKONDA
RAJENDRA NAGAR MANDAL
DIST-RANGA REDDY
HYDERABAD-500089
TELANGANA AND M/S CONSTRUCTOR A SANJOSE
S.A. HAVING ITS REGISTERED OFFICE AT ROSALIA DE CASTRO
44
PONTEVEDRA
SPAIN AND ITS INDIAN OFFICE AT UNIT 602
GLOBAL FOYER BUILDING
GOLF COURSE ROAD
SECTOR-43
GURGAON-122002
HARYANA AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 11TH
FLOOR
HIRANANDANI
KNOWLEDGE PARK
TECHNOLOGY STREET
POWAI
MUMBAI-76 AND IS REPRESENTED THROUGH ITS AUTHORISED
REPRESENTATIVE MR. P.M.V. RAGHUNADH BABU
S/O P. KOTESWARA RAO
R/O FLAT NO. 111
JALVAYUVIHAR
OPPOSITE JNTU KUKTPALLY
HYDERABAD
500072
TELENGANA
------------
Advocate for : MR B CHAKRAVORTY
Advocate for : MR G N SAHEWALLA appearing for ECI- SANJOSE (JV)
Page No.# 4/6
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 04.06.2024
Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. M.
Sahewalla, learned counsel for the petitioner. Also heard Mr. B. Chakravarty,
learned CGC for the respondents.
2. In this writ petition the question of appointment of an arbitrator by the
General Manager of the Railways in respect of a contract by and between the
petitioner and the Railways is an issue.
3. According to the writ petitioners under the provisions of Section 12 (5) of
the Arbitration and Conciliation Act, 1996, an authority who is not competent to
be appointed as an arbitrator is also not competent to appoint any other
authority as an arbitrator.
4. It is submitted that this view is covered by the Judgment of the Apex
Court in TRF Limited Vs Energo Engineering Projects Limited reported in (2017)
8 SCC 377 and Perkins Eastman Architects DPC and Another Vs HSCC (India)
Limited reported in (2020) 20 SCC 760.
5. The learned Senior Counsel further submits that a subsequent Judgment
rendered in Central Organisation for Railway Electrification Vs M/S ECI-SPIC-
SMO-MCML (JV) a Joint Venture Company reported in 2020 (14) SCC 712 had
upheld a similar nomination by the Railway authority on the grounds and
reasons mentioned therein. In a still later proceedings before the Apex Court
rendered in Union of India Vs M/S Tantia Constructions Limited in Petition (s) for
Special Leave to Appeal (C) No. 12670/2020, by order dated 11.01.2021 a
Page No.# 5/6
Three Judge Bench of the Apex Court doubted the correctness of the Judgment
of the Apex Court rendered in Central Organisation for Railway Electrification
(supra) and a request was made for placing/re-consideration of the said
Judgment by a Larger Bench.
6. Learned Senior Counsel submits that the matter has been already
constituted and the matter is placed before the Larger Bench and by order
dated 16.04.2024 in Civil Appeal No. 9486-9487/2019, the matters have been
listed for hearing on 30th July, 2024.
7. Learned Senior Counsel for the petitioner submits that the issue of
whether an authority who is barred under Section 12(5) of the Arbitration and
Conciliation Act, 2016 to act as an arbitrator would otherwise be competent to
nominate an arbitrator is an issue which is pending a decision before the Apex
Court in Central Organisation for Railway Electrification. The same issue is also
raised in the present writ petition and therefore, the learned Senior counsel
submits that the matter be listed in the month of August.
8. Mr. B. Chakravarty, learned CGC appearing for the respondents although
initially objected to the prayers made on the ground that there is no stay of any
of the proceedings by the Apex Court by its order dated 16.04.2024 and the writ
Court is otherwise competent to proceed and hear the matter, however, fairly
submits that the issue presently pending before the Apex Court will be relevant
in deciding the present issue before this Court. He, however objects that this is
a writ petition which is filed questioning the appointment of arbitrator by the
Railways and the question of whether a writ petition is maintainable at the first
instance or parties are to be relegated to file an appeal under Section 34 is to
be decided.
Page No.# 6/6
9. Upon hearing the learned counsels for the parties, let the matter be listed
again on 5th August, 2024. By which time, the parties will apprise the Court
about the matter before the Apex Court in Central Organisation for Railway
Electrification.
10. The interim order, passed earlier, will continue until further orders.
JUDGE
Comparing Assistant
