Madhya Pradesh High Court
M/S Anil Kumar Grover vs Military Engineering Services on 25 November, 2021
Author: Chief Justice
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THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
AT JABALPUR
(SINGLE BENCH)
Arbitration Case No.28 of 2020
M/s Anil Kumar Grover ...Petitioner
Versus
Military Engineering Services ...Respondent
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Coram :
Hon'ble Mr. Justice Ravi Malimath, Chief Justice
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Presence :
Mr. Abhijeet Awasthi, learned counsel for the petitioner.
Mr. Vikram Singh, learned counsel for the respondent.
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O R D E R (Oral)
(25.11.2021)
The petitioner is before this Court in this petition under Section 11
of the Arbitration and Conciliation (Amendment) Act, 2015 (for short 'the
Act'), seeking for appointment of an Arbitrator to resolve the dispute that
has arisen between the parties.
2. This petition has a checkered history. An agreement for the work of
replacement/new construction of EDK magazines at Ordnance Factory
Khamariya, District Jabalpur was entered into between the parties. The
work order was issued in 2003. Certain disputes arose in 2006. Arbitration
clause was invoked. The respondent appointed a retired Chief Engineer as
sole arbitrator. The matter was concluded and fixed for publication of the
award. Even time granted was extended. However, the award was not
published. Thereafter, the said arbitrator resigned. In his place yet another
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Chief Engineer was appointed. Time was extended time and again to
complete the proceedings. Thereafter, the arbitrator was terminated by
issuing notice dated 3.10.2017. Subsequently, an application under
Section 11(6) of the Arbitration and Conciliation Act, 1996 was filed
before this Court in Arbitration Case No.123 of 2017. Thereafter, the
respondent appointed Mr. R.K.Kamboj, Chief Engineer on 27.3.2019. He
has subsequently resigned as the sole arbitrator. Thereafter, the instant
petition has been filed seeking appointment of an arbitrator.
3. Learned counsel for the petitioner contends that ever since the
dispute arose in 2006, they have not come to end of it. That the arbitrators
are either resigning or otherwise that the dispute still continues. Therefore,
he relies on a judgment of the Hon'ble Supreme Court in the case of
Union of India and others Vs. Uttar Pradesh State Bridge Corporation
Limited reported in (2015) 2 SCC 52. In identical circumstances, the
Hon'ble Supreme Court held that notwithstanding the existence of
arbitration agreement with regard to appointment of arbitrator in view of
the long delay and the facts involved therein, the Court had sufficient
power to appoint an arbitrator outside the arbitration clause. Therefore, it
is pleaded that it is a fit case where the situation being similar, the Court
may appoint an arbitrator to adjudicate the same. The respondent has no
objection for the same. However, he pleads that the new arbitrator to be
appointed may continue from the stage where the proceedings were
stopped.
4. On considering the contentions and keeping in mind the fact that
the dispute arose between the parties in the year 2006 it is only just and
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appropriate that following the judgment of the Hon'ble Supreme Court in
the aforesaid case, an arbitrator be appointed. That it is also necessary
that the arbitrator recommences the proceeding from the stage at which it
was stopped by the earlier arbitrator. The parties to refer the same to the
arbitrator for the said purpose.
5. Having considered the contentions of both sides, Hon'ble Mr.
Justice K.K.Trivedi, Former Judge, High Court of Madhya Pradesh, Block
No.3 "Shreen", Vasundhara Vihar, Near St.Thomas School, South Civil
Lines, Jabalpur (M.P.) is appointed as an Arbitrator after his disclosure in
writing is obtained in terms of Section 11(8) of the Act; and only after
receipt thereof his appointment, as an Arbitrator, shall come into force.
6. On his giving consent to arbitrate the dispute between the parties as
an Arbitrator, Hon'ble Mr. Justice K.K.Trivedi, Former Judge, High Court
of Madhya Pradesh, shall enter into reference, and shall pass an award in
accordance with law. The learned Arbitrator shall fix his fees
in consultation with both the parties.
7. The arbitration petition is disposed off accordingly.
(RAVI MALIMATH)
CHIEF JUSTICE
C.
Digitally signed by
CHRISTOPHER PHILIP
Date: 2021.11.30 13:30:59
+05'30'
