Vinoba Bhave University vs M/S. Design Team Architect And ...
2022 Latest Caselaw 1241 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Arb. Appeal No. 6 of 2016
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        Vinoba Bhave University                   ...              Appellant
                               Versus

       M/s. Design Team Architect and Civil Engineers
                                              ...       Respondent

                                     ------

CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellant : Mrs. I.S. Choudhary, Advocate For the Respondent : Mr. P.N. Rai, Advocate

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Order No.20 Dated- 29.03.2022 I.A. No.5896 of 2021

Heard the parties.

This interlocutory application has been filed with a prayer to recall the order dated 04.01.2021 passed by this court in this appeal to the extent of affording opportunity for advancing arguments on the issue not raised.

It is submitted by the learned counsel for the respondent that this appeal was heard and the judgment was reserved and one of the points for determination in this appeal is "(i) Whether the award impugned before the learned court below can be set aside on the ground of incompetency of the sole arbitrator appointed by the designated Bench of this Court having not been duly appointed in terms of the clause 10 of the agreement between the parties?"

It was observed in the said order dated 04.01.2021 that undisputedly, in this case, the sole arbitrator is not anyone appointed by the Council of Architecture New Delhi and clause 15 of the agreement between the parties, reads as under :-

"All differences and disputes arising between the client and the Architect on any matter connected with the agreement or in regard to the interpretation of the content thereof shall be referred to the Council of Architecture New Delhi for final decision."

So, this Court has observed in the said order dated 04.01.2021 that the issue for consideration before this Court is when the parties have agreed in clause 10 of the agreement which is the clause relating to the arbitration that the differences and disputes arising between the parties were to be referred to the Council of Architecture New Delhi whether any person other than the one appointed by or in consultation with the Council of Architecture New Delhi can be appointed as an arbitrator and it has also been mentioned in the said order dated 04.01.2021 that no argument was advanced by either of the parties to this appeal at the time of hearing of the appeal on this issue.

It is submitted by the learned counsel for the respondent that the appellant may not be allowed to argue on this issue now. It is further submitted that mere taking of ground in the learned court below in Section 34 application would not be a reason to allow raising of such plea in the present appeal, keeping in view the special facts of this case, where the appellant has neither in writing nor orally raised the plea specifically. Apart from all other legal reasons, the appellant should be estopped and precluded from now arguing/raising the plea it has waived, assuming the plea was otherwise available. It is then submitted that the appellant was aware of the letters dated 16.04.2002 and 12.12.2002 sent by the council of the Architecture to it, which was part of the record before this Court as Annexure-11 and Annexure-16 to the application for appointment filed under Section 11 vide Arbitration Application No.43 of 2003. It is then submitted that it was the appellant university which failed to agree to either of them, consequently, triggering the jurisdiction of the Hon'ble Court to exercise the powers under Section 11 which led to the appointment and the appellant was heard in the matter of appointment and as such aware of the truth and could not therefore advise itself act inconsistent therewith in this appeal. The submissions has been made as to why the issue is to be answered in favour of the respondent and against the appellant.

Learned counsel for the appellant on the other hand opposes the prayer for recalling the order dated 04.01.2021 passed by this Court and submits that this Court has rightly given an opportunity to the appellant to advance argument on the issue as mentioned in the order dated 04.01.2021. Hence, there is no need of recalling the order dated 04.01.2021.

Having heard the submissions made at the Bar and after going through the materials in the record, this Court is of the considered view that vide order dated 04.01.2021, this Court thought it fit after going through the materials in the record that it will be just and proper to hear the parties in respect of the point of determination 'whether the award impugned before the learned court below can be set aside on the ground of incompetency of the sole arbitrator appointed by the designated Bench of this Court having not been duly appointed in terms of the clause 10 of the agreement between the parties' and since the appellant is ready and willing to advance argument in respect of the same and the point of determination involves a substantial question of law also, so, this Court is of the considered view that there is no justification to recall the order dated 04.01.2021 passed in this appeal.

Accordingly, the first prayer of the respondent who has filed this interlocutory application for recalling of the order dated 04.01.2021 to the extent of affording opportunity for advancing argument on the issue is rejected.

So far as the alternative prayer of the respondent regarding deciding the issue against the appellant and in favour of the respondent by taking on record the documents along with this interlocutory application is concerned, the same will be considered at the time of hearing of this appeal.

This interlocutory application is disposed of accordingly.

(Anil Kumar Choudhary, J.) Arb. Appeal No. 6 of 2016

With the consent of both the parties, list this appeal on 21.04.2022 'for hearing' peremptorily.

(Anil Kumar Choudhary, J.) Sonu/Gunjan-