Gauhati High Court
Ekta Shakti Foundation vs The State Of Assam And Anr on 13 February, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
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GAHC010133112024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./27/2024
EKTA SHAKTI FOUNDATION,
REPRESENTED THROUGH AUTHORIZED REPRESENTATIVE/ PROJECT
DIRECTOR MR. ANIL KUMAR AGGARWAL, HAVING ITS OFFICE A-20,
BASEMENT AND UPPER GROUND FLOOR, NEW KRISHNA PARK, VIKAS
PURI, NEW DELHI-110018.
VERSUS
THE STATE OF ASSAM AND ANR
THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT
OF ASSAM, EDUCATION (ELEMENTARY DEPARTMENT), DISPUR,
GUWAHATI.
2:THE OFFICE OF THE STATE NODAL OFFICER
REPRESENTED THROUGH THE MISSION DIRECTOR
SAMAGRA SHIKSHA AND STATE NODAL OFFICER
MID-DAY-MEAL SCHEME
SSA CAMPUS
KAHILIPARA
GUWAHATI-781019
ASSA
Advocate for the Petitioner : MR. R C SANCHETI, MR S SANCHETI,MR. A SANCHETI
Advocate for the Respondent : SC, ELEM. EDU, SC, SSA
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BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
13.02.2025
Heard Mr. S. Sancheti, learned counsel for the petitioner. Also heard Mr. P.
Nayak, learned Standing Counsel for the SSA.
This is an application under Section 11 of the Arbitration and Conciliation
Act, 1996, by which the petitioner has approached this Court for appointment of
an arbitrator as the contract entered by and between the petitioner and the
respondent on 26.10.2018 stood terminated by the order dated 10.08.2020.
The learned counsel for the petitioner submits that the arbitration clause
referred to the agreement at Clause 56 prescribes that any dispute arising out
of the contract between the parties the same shall be referred to the sole
arbitrator of the State Government or any Officer appointed by the State
Government.
It is the submission of the learned counsel for the parties that in view of
the judgment of the Apex Court in Perkins Eastman Architects DPC & Anr. Vs.
HSCC (India) Ltd., (2019) SCC Online SC 1517 and the subsequent judgment
the Bar under Section 12(5) of the Arbitration and Conciliation Act, 1996 applies
to the respondent S.S.A. and/or the State Government which prevents them
from appointing the arbitrator and consequently on 21.02.2024 the petitioner
through the advocate issued a notice to the State Nodal Officer of the Mid-day-
Meal Scheme, Assam intimating inter-alia that the Clause 56 of the Arbitration
for appointment of an arbitrator unilaterally being invalid in view of the
judgment of the Apex Court in Parkins Eastman Architects DPC & Anr. Vs. HSCC
(India) Ltd., (2019) SCC Online SC 1517, they would approach the High Court by
filing an application under Section 11 of the Arbitration and Conciliation Act
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1996.
The respondents have contested the case and have submitted that the
power under Section 11 of the High Court for appointment of an arbitrator can
be invoked when the party who was called upon for appointment of an
arbitrator has failed to act in terms of the notice issued for appointment of an
arbitrator and has failed to comply with the provisions of the arbitration
agreement. Referring to the Clause 56 of the said arbitration agreement as well
as the notice dated 21.02.2024 he submits that by the said notice the
respondents were not called upon to appoint their arbitrator. Rather they were
intimated that Clause 56 of the arbitration agreement is invalid in view of the
judgment of the Apex Court in Perkins Eastman Architects DPC & Anr. Vs. HSCC
(India) Ltd., (2019) SCC Online SC 1517 and therefore, they would approach the
High Court under Section 11. He submits that a claim relating to notice dated
21.02.2024 reveals that they were never called upon to appoint an arbitrator
and/or refer the matter for arbitration. He therefore submits that there was no
failure on the part of the respondent to appoint an arbitrator which will occasion
the petitioner to approach the Court under Section 11 of the Arbitration and
Conciliation Act, 1996 to file an application for appointment of an arbitrator. The
respondents are yet to be called upon by the petitioner for appointment of an
arbitrator. He further submits that even if the respondents under Clause 56 of
the agreement the respondents are required to refer the matter for arbitration
to the Government, the same will not be in conflict with Section 12(5) of the
Arbitration and Conciliation Act, 1996 as none of the conditions prescribed under
7th Schedule as mandated under Section 12 are applicable to the respondents.
Under such circumstances, he submits that this petition is not maintainable at
this stage. If the petitioner approach the authorities for referring the matter for
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arbitration then appropriate steps in this regard would be taken by the
Department.
In view of the submissions made by the learned counsel, it has become
necessary to examine the particulars of the respondent authority. The
respondent authority is a society registered under Societies Registration Act,
1860. Accordingly, the learned counsel for the respondent is permitted to bring
on record the relevant documents which reflects it's Constitution or its members
of the society at the time of incorporation as a Society as well as the various
Officer bearers appointed.
Let this information be placed by way of an affidavit within a period of
four weeks.
Let the matter be listed again on 20.03.2025.
JUDGE
Comparing Assistant
